Skip to main content

Full text of "Hobby Lobby vs US"

See other formats


Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 1 of 46 



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF OKLAHOMA 

( 1 ) HOBBY LOBBY STORES, INC., 

(2 ) MARDEL, INC., 

(3) DAVID GREEN, 

(4) BARBARA GREEN, 

(5) STEVE GREEN, 

(6) MART GREEN, and 

(7) DARSEELETT, 

Plaintiffs, 

V ' Civil Action No. CIV-12-100 - HE 

(1) KATHLEEN SEBELIUS, Secretary of 

the United States Department of VERIFIED COMPLAINT 

Health and Human Services, 

(2) UNITED STATES DEPARTMENT JURY DEMANDED 
OF HEALTH AND HUMAN 

SERVICES, 

(3) HILDA SOLIS, Secretary of the 
United States Department of Labor, 

(4) UNITED STATES DEPARTMENT 
OF LABOR, 

(5) TIMOTHY GEITHNER, Secretary of 
the United States Department of the 
Treasury, and 

(6) UNITED STATES DEPARTMENT 
OF THE TREASURY, 

Defendants. 



S. Kýle Duncan, LA Bar No. 25038 

Eric S. Baxter, D.C. Bar No. 479221 

Lori Halstead Windham, D.C. Bar No. 501838 

The Becket Fund for Religious Liberty 

3000 K Street, N.W., Suitě 220 

Washington, D.C. 20007 

Telephone; (202) 955-0095 

Facsimile: (202) 955-0090 (fax) 

kduncan@becketfund.org 



Attorneys for Plaintiffs 



Charles E. Geister III, OBA No. 33 1 1 
Derek B. Ensminger, OBA No. 22559 
Hartzog, Conger, Cason & Neville 
1600 Bank of Oklahoma Plaza 
201 Robert S. Kerr Avenue 
Oklahoma City, OK 73102 
Telephone: (405) 235-7000 
Facsimile: (405) 996-3403 
cgeister@hartzoglaw.com 
densminger@hai1zoglaw.com 
Attorneys for Plaintiffs 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 2 of 46 



Plaintiffs Hobby Lobby Stores, Inc., Mardel, Inc., David Green, Barbara Green, 
Steve Green, Mart Green, and Darsee Lett, by and through their attorneys, allege and 
statě as follows: 

NATURE OF THE ACTION 

1. This is a challenge to regulations issued under the 2010 Patient Protection and 
Affordable Care Act that would force religiously-motivated business owners like 
Plaintiffs to violate their faith under threat of millions of dollars in fines. 

2. Plaintiffs David Green, Barbara Green, Steve Green, Mart Green, and Darsee 
Lett ("the Green family") are comtnitted evangelical Christians. Through various trusts, 
they own and operáte plaintiff Hobby Lobby Stores, Inc. ("Hobby Lobby"), a privately 
held retail business headquartered in Oklahoma City. Hobby Lobby currentiy operates 
over 500 stores in over 40 states and has over 13,000 fulí-time employees. 

3. Through various trusts, the Green family also owns and operates plaintiff 
Mardel, Inc. ("Mardel"), a privately held bookstore and education company 
headquartered in Hobby Lobby's Oklahoma City complex that sells a variety of 
Christian-themed materials. Mardel currentiy operates 35 stores in 7 states and has 372 
fuli-time employees. 

4. Unless context indicates otherwise, "Plaintiffs" refers collectively to the Green 
family, Hobby Lobby, and Mardel. 



1 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 3 of 46 



5. The Green family believes they are obligated to run their businesses in 
accordance with their faith. Commitment to Jesus Christ and to Biblical principles is what 
gives their business endeavors meaning and purpose. 

6. The Green family's business practices therefore reflect their Christian faith in 
unmistakable and concrete ways. For example, they employ full-time chaplains to meet 
their employees' spirituál and emotional needs. They pay all of their employees well 
above the minimum wage and provide them with excellent benefits. They monitor their 
merchandise, marketing, and operations to make sure all are consistent with their beliefs. 
They give millions of dollars from their profits to rund missionaries and ministries 
around the world. And, as is well known, they close all their stores on Sundays, even 
though they lose millions in annual sales by doing so. 

7. The Green family's religious beliefs forbid them from participating in, 
providing access to, paying for, training others to engage in, oř otherwise supporting 
abortion-causing drugs and devices. 

8. The administrativě rule at issue in this case ("the Mandáte") runs roughshod 
over the Green family' s religious beliefs, and the beliefs of millions of other Americans, 
by forcing them to provide health insurance coverage for abortion-inducing drugs and 
devices, as well as related education and counseling. 

9. The Mandáte illegally and unconstitutionally coerces the Green family to 
violate their deeply-held religious beliefs under threat of heavy fines, penalties, and 



2 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 4 of 46 



lawsuits. The Mandáte also forces the Green family to facilitate government-dictated 
speech incompatible with their own speech and religious beliefs. Having to pay fines for 
the privilege of practicing one's religion or controlling one's own speech is alien to our 
American traditions of individual liberty, religious tolerance, and limited government. It 
is also illegal and unconstitutional. 

10. The Mandáte does not apply to everyone equally. The government has not 
required every insurance pian in the country to cover these services, but has instead 
exempted numerous persons and groups, often for reasons of commercial convenience. 
Millions of employers may escape the mandáte because of the age of their plans or 
because of the number of people they employ. Certain non-profit religious organizations 
have been exempted from the mandáte altogether, and others have been given extra time 
to comply with it. But the government refuses to give any accommodation whatsoever to 
families like the Greens, who simply want to run their businesses in accordance with their 
beliefs. 

1 1 . Defendants have no power to determine that businesses and business owners 
like the Greens deserve third-class protection for their religious faith. Religious freedom 
is the birthright of eveiy American. It does not belong solely to those organizations 
Defendants have chosen to favor. 

12. Defendants' actions therefore violate Plaintiffs' rights to freedom of religion, 
speech, and association as secured by the First and Fifth Amendments to the United 



3 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 5 of 46 



States Constitution and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 
2000bb etseq. 

13. Furthermore, the Mandáte is illegal because it was imposed by Defendants 
without prior notice or sufficient time for public comment, and otherwise violates the 
Administrativě Proceduře Act, 5 U.S.C. § 553. 

14. Religious beliefs like those of the Green family concerning abortion are neither 
obscure nor unknown. In formulating and fmalizing the Mandáte, the government acted 
with full knowledge that the Mandáte would run counter to beliefs like theirs, shared by 
millions of Americans. And yet the government not oniy refused to exempt objecting 
business owners like the Greens, but it allowed plans to exclude these services for a wide 
range of reasons other than religion. The Mandáte can therefore be interpreted as nothing 
other than a deliberate attack on the religious beliefs of the Greens and millions of other 
Americans. 

15. Plaintiffs therefore seek declaratory and injunctive reliéf against the Mandáte. 

JURISDICTION AND VENUE 

16. The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 
§ 1361. This action arises under the Constitution and laws of the United States. This 
Court has jurisdiction to render declaratory and injunctive reliéf under 28 U.S.C. §§ 2201 
and 2202, and 42 U.S.C. § 2000bb-l. 



4 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 6 of 46 



17. Venue lies in íhis district pursuant to 28 U.S.C. § 139 l(e). Plaintiffs reside in 
this district. A substantial part of the events or omissions giving rise to the claim occurred 
in this district. 

IDENTIFICATION OF PARTIES 

18. Plaintiff David Green founded Hobby Lobby in 1970 and remains its CEO. He 
is also a trustee of one or more of the trusts described in paragraphs 2 and 3 of this 
Complaint. He is a Christian and, from the beginning, has sought to run Hobby Lobby in 
harmony with Goďs laws and in a manner which brings glory to God. 

19. Plaintiff Barbara Green is a trustee of one or more of the trusts described in 
paragraphs 2 and 3 of this Complaint. She is a Christian and, from the beginning, has 
sought to run Hobby Lobby in harmony with Goďs laws and in a manner which brings 
glory to God. 

20. Plaintiff Steve Green is the President of Hobby Lobby and a trustee of one or 
more of the trusts described in paragraphs 2 and 3 of this Complaint. He is a Christian 
and, from the beginning, has sought to run Hobby Lobby in harmony with Goďs laws 
and in a manner which brings glory to God. 

2 1 . Plaintiff Mart Green is the Vice CEO of Hobby Lobby and the CEO of Mardel, 
a chain of education and supply stores providing Christian books and church supplies. He 
is also a trustee of one or more of the trusts described in paragraphs 2 and 3 of this 
Complaint. Mart is also founder of several Christian media companies and Chairman of 



5 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 7 of 46 



the Board of Oral Roberts University. He is a Christian and, from the beginning, has 
sought to run Hobby Lobby, Mardel, and his other business ventures in harmony with 
Goďs laws and in a manner which brings glory to God. 

22. Plaintiff Darsee Lett is Vice-President of Hobby Lobby and trustee of one or 
more of the trusts described in paragraphs 2 and 3 of this Complaint. She is a Christian 
and, from the beginning, has sought to run Hobby Lobby in harmony with Goďs laws 
and in a manner which brings glory to God. 

23. Hobby Lobby is a privately held, for-profit Corporation Iocated in Oklahoma 
City and organized under Oklahoma law. Hobby Lobby is not a church, an integrated 
auxiliary of a church, or a convention or association of churches as defíned by 26 U.S.C. 
§ 6033(a)(3)(A)(i). Hobby Lobby is not a religious order as defíned by 26 U.S.C. § 
6033(a)(3)(A)(iii). Nor is it a church or a convention or association of churches as 
defíned by 26 U.S.C. § 414(e). 

24. Mardel is a privately held, for-profit corporation Iocated in Oklahoma City and 
organized under Oklahoma law. Mardel is not a church, an integrated auxiliary of a 
church, or a convention or association of churches as defíned by 26 U.S.C. § 
6033(a)(3)(A)(i), Mardel is not a religious order as defíned by 26 U.S.C. § 
6033(a)(3)(A)(iii). Nor is it a church or a convention or association of churches as 
defíned by 26 U.S.C. § 414(e). 



6 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 8 of 46 



25. Defendants are appointed officials of the United States government and United 
States governmental agencies responsible for issuing the Mandáte. 

26. Defendant Kathleen Sebelius is the Secretary of the United States Department 
of Health and Human Services ("HHS"). In this capacity, she has responsibility for the 
operation and management of HHS. Sebelius is sued in her official capacity only. 

27. Defendant HHS is an executive agency of the United States government and is 
responsible for the promuigation, administration and enforcement of the Mandáte. 

28. Defendant Hilda Solis is the Secretary of the United States Department of 
Labor. In this capacity, she has responsibility for the operation and management of the 
Department of Labor. Solis is sued in her official capacity only. 

29. Defendant Department of Labor is an executive agency of the United States 
government and is responsible for the promuigation, administration, and enforcement of 
the Mandáte. 

30. Defendant Timothy Geithner is the Secretary of the Department of the 
Treasury, In this capacity, he has responsibility for the operation and management of the 
Department. Geithner is sued in his official capacity only. 

3 1 . Defendant Department of Treasury is an executive agency of the United States 
government and is responsible for the promuigation, administration, and enforcement of 
the Mandáte. 



7 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 9 of 46 



FACTUAL ALLEGATIONS 
I. The Green Family and Hobby Lobby. 

32. Hobby Lobby began as Greco Products, a decorative frame company. In 1970, 
David Green started the business with a six hundred dollar bank loan, building hobby 
frames in a garage and selling them to other retailers. 

33. As the business grew, David Green re-named the company Hobby Lobby and 
opened the first retail store in Oklahoma City in 1972. From the beginning, Hobby Lobby 
was a family business, David and Barbara worked in the store and packaged and shipped 
their frames to other retailers. Steve and Mart, in exchange for money to buy baseball 
cards, glued frames together at the family's kitchen table, 

34. The store became successful. The Greens moved to a larger space, and then to 
an even larger one, and then began to open additional stores. They broadened their 
offerings to include a variety of art and craft supplies, home décor, and holiday 
decorations. Today, Hobby Lobby has grown into one of the nation's leading craft store 
chains, operating 514 stores in 41 states with 13,240 full-time employees, 

35. Hobby Lobby has continued to expand and create new jobs, even during the 
recent economic downturn. 

36. Hobby Lobby has always operated as a family business. David and Barbara 
Green did much of the work themselves in their first stores. As their children Steve, Maxi, 
and Darsee grew older, the Greens introduced them to the business and trained them to 



8 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 10 of 46 



run a retail chain. Today, Steve is the President of Hobby Lobby, Darsee is Vice- 
president, and Mart is Vice CEO. 

37. In 1981, Plaintiff Mart Green founded Mardel, a bookstore and educational 
supply company that specializes in Christian materials, such as Bibles, books, movies, 
apparel, church and educational supplies, and homeschool curricula. Mardel operates 35 
stores in 7 states and has 372 employees. 

38. The members of the Green family operáte Hobby Lobby and Mardel through a 
management trust, which owns all of the voting stock of these companies. Each member 
of the Green family is a trustee of the management trust. By its own terms, this trust 
exists first and foremost "to honor God with all that has been entrusted" to the Green 
family and to "use the Green family assets to create, support, and leverage the efforts of 
Christian ministries." The trustees must sign a Trust Commitment, which among other 
things requires them to affirm the Green family statement of faith and to "regularly seek 
to maintain a close intimate walk with the Lord Jesus Christ by regularly investing time 
in His Word and prayer." 

II. The Green Family's Religíous Beliefs Related to Abortion-Causing Drugs and 
Devices. 

39. Since the beginning, the Green family has operated Hobby Lobby according to 
their Christian faith. Christian beliefs and values inform their decisions and form the 
inspiration for their company, The family members use their profits to support Christian 



9 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 11 of 46 



charities and ministries around the worid, They believe that God has blessed them so that 
they might bless others. 

40. For example, David and Barbara Green signed the Giving Pledge, agreeing to 
donate the majority of their wealth to philanthropy. In this pledge, the Greens stated, "We 
honor the Lord in all we do by operating the company in a manner consistent with 
Biblical principles. From helping orphanages in faraway lands to helping ministries in 
America, Hobby Lobby has always been a tool for the Lorďs work. For me and my 
family, charity equals ministry, which equals the Gospel of Jesus Christ" 

41. Hobby Lobby bears the imprint of its owners' faith. As they explain on the 
company website, "The foundation of our business has been, and will continue to be 
strong values, and honoring the Lord in a manner consistent with Biblical principles." 

42. Hobby Lobby' s statement of purpose reads: 

In order to effectively serve our owners, employees, and customers the 
Board of Directors is committed to: 

Honoring the Lord in all we do by operating the company in a 
manner consistent with Biblical principles. 

Offering our customers an exceptional selection and value, 

Serving our employees and their families by establishing a 
work environment and company policies that build character, 
strengthen individuals, and nurture families. 

Providing a return on the owners' investment, sharing the 
Lorďs blessings with our employees, and investing in our 
community. 



10 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 12 of 46 



We believe that it is by Goďs grace and provision that Hobby 
Lobby has endured. He has been faithful in the past, we trust 
Him for our future. 

43. Hobby Lobby's Christian underpinnings are apparent to customers shopping in 
its stores. Among other things, the stores use a carefully managed music playlist which 
prominently features inspirational Christian songs. They do not stock gruesome or bloody 
Halloween decorations, nor risqué greeting cards. They carry religiously themed 
raerchandise, particularly in their Christmas and Easter seasonal sections, which occupy a 
large portion of each store. 

44. Furthermore, the Green family's religious beliefs forbid them from facilitating 
activities they regard as immorai or harmful. For instance, they refuse to seli shot glasses 
at Hobby Lobby. They once declined an offer from a liquor store to take over one of their 
building leases, because they did not want to facilitate alcohol use in the neighborhood 
around the store. Taking the liquor store ! s offer would have saved them hundreds of 
thousands of dollars a month. Similarly, the family refused to allow their trucks to "back- 
haul" beer shipments for a major distributor, even though the profits from doing so would 
have been substantial. 

45. Perhaps the most well-known expression of the Greens' religious beliefs is the 
decision to close Hobby Lobby stores on Sundays. The Greens believe that employees 
should not be asked to regularly work on Sundays, so they can enjoy a day of rest and 
spend the day with their families. They made this decision because they believed it was 
the right thing to do, even though it initially cost them millions in lost revenues. 

11 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 13 of 46 



46. Consistent with the Green family's religious beliefs, Hobby Lobby stores are 
open no more than 66 hours per week, They close at 8 p.m. so that empioyees can spend 
the evening with their families. Again, the Greens know they might earn more if they 
stayed open later, but they believe it is more important to respect their empioyees and 
their families, 

47. Every Christmas and Easter, Hobby Lobby takés out full-page ads in all 
newspapers in which it advertises. These ads celebrate the religious nature of the holidays 
and direct readers who would like to learn more, or are in need of spirituál guidance, to a 
site where they can download a free Bible and to the phone number of an outside ministry 
which provides spirituál counseling. In recent years, they have also taken out ads on the 
Fourth of July, celebrating the Christian beliefs of many of our natioiťs founders. They 
maintain an archive of those ads on the company website: 
http://www.hobbylobby.com/holiday_messages/holiday_messages.cfm. 

48. Hobby Lobby has always served a diverse customer base, many of whom do 
not share the owners' religious beliefs. It strives to welcome and show respect to people 
of all religious faíths, or no faith at all. The Green family and their empioyees respond 
respectfully to criticism they have received for their beliefs about faith and business. The 
Greens believe it would be wrong to erase their faith from the company they operáte. 

49. Like Hobby Lobby, Mardel is a company run in accordance with the Green 
family's (and CEO Mart Green's) religious beliefs. Mardel is a bookstore and educational 



12 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 14 of 46 



supply company that specializes in Christian materials, such as Bibles, books, movies, 
apparel, church and educational supplies, and homeschool curricula. Mardel describes 
itself as "a faith-based company dedicated to renewing minds and transforming lives 
through the products we seli and the ministries we support." It gives 10% of its net profits 
to help print Bibles translated by Wycliffe Bible Translators. MardePs 372 employees 
receive their health insurance coverage through Hobby Lobby's self-insured plans. 

50. The Green family believes that they have a religious obligation to treat their 
employees fairly and with respect, and to compensate good work with good wages and 
benefits. Over the years, they have looked for opportunities to raise wages, and have long 
provided minimum salaries well above any national or regional minimum wage. Despite 
the recession, they have increased wages for full-time employees for the Iast four years in 
a row, The wages for Hobby Lobby's full-time employees start at 80% above the federal 
minimum wage. 

51. The Green family also employs company chaplains to minister to employees' 
personál needs. They provide religiously-inspired fmancial management classes for 
employees seeking to improve their family finances. They provide an on-site health clinic 
for their Oklahoma City employees. They provide conflict and dispute resolution classes 
based on Biblical principles. Employees are also offered an option to resoíve employment 
disputes through various means, including Christian conciliation. Hobby Lobby 



13 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 15 of 46 



welcomes employees of all faiths or no faith, and seeks to create a positive, family- 
friendly environment for its workers. 

52. As part of their religious obligations, the Green family also provides excellent 
health insurance coverage to Hobby Lobby's and Mardďs employees through a seif- 
insured pian. As in other aspects of the business, the Greens believe it is imperative that 
their employee benefits are consistent with their religious beliefs. 

53. The Green family's religious beliefs prohibit them from deliberately providing 
insurance coverage for prescription drugs or devices inconsistent with their faith, in 
particular abortion-causing drugs and devices. 

54. Hobby Lobby's insurance policies have Iong explicitly excluded — consistent 
with their religious beliefs — contraceptive devices that might cause abortions and 
pregnancy-termination drugs like RU-486. 

55. Recently, after learning about the nationally prominent HHS mandáte 
controversy, Hobby Lobby re-examined its insurance policies to ensure they continued to 
be consistent with its faith. During that re-examination, Hobby Lobby discovered that the 
formulary for its prescription drug policy included two drugs — Pian B and Elia — that 
could cause an abortion. Coverage of these drugs was not included knowingly or 
deliberately by the Green family. Such coverage is out of step with the rest of Hobby 
Lobby 's policies, which explicitly exclude abortion-causing contraceptive devices and 



14 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 16 of 46 



pregnancy-termination drugs. Hobby Lobby therefore immediately excluded the 
inconsistent drugs from its policies. 

56. The Green family also believes it would violate their faith to deliberately 
provide health insurance that would facilitate access to abortion-causing drugs and 
devices, even if those items were paid for by an insurer or a pian administrátor and not by 
Hobby Lobby itself. 

57. The Greens have no religious objection to providing coverage for non- 
abortion-causing contraceptive drugs and devices. 

58. The Green family and Hobby Lobby have expended significant resources 
working with Hobby Lobby' s insurers and pian administrators to ensure that its health 
insurance policies reflect their religious beliefs. 

59. Before the Mandáte was issued, Hobby Lobby made the decision not to retain 
grandfathered status under the Affordable Care Act. Neither its 2011 nor its 2012 pian 
materials included a notice of grandfather status. Therefore Hobby Lobby's insurance 
pian is not grandfathered. See 45 C.F.R. § 147.140(a)(l)(i), 26 C.F.R. § 54.9815- 
1251T(a)(l)(i); 29 C.F.R. § 2590.7 15-125 l(a)(l)(i). 

III. The Affordable Care Act 

60. In March 2010, Congress passed, and President Obama signed into law, the 
Patient Protection and Affordable Care Act, Pub. L. 111-148 (March 23, 2010), and the 



15 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 17 of 46 



Health Care and Education Reconciliation Act, Pub. L. 111-152 (March 30 } 2010), 
collectively known as the "Affordable Care Act." 

61. The Affordable Care Act regulates the national health insurance market by 
directly regulating "group health plans" and "health insurance issuers." 

62. The Act does not apply equally to all plans. 

63. The Act does not apply equally to all insurers. 

64. The Act does not apply equally to all individuals. 

65. The Act applies differently to employers with fewer than 50 employees, not 
counting seasonal workers. 26 U.S.C. § 4980H(c)(2)(A). 

66. According to the United States census, more than 20 million individual 
workers are employed by firms with fewer than 20 employees. 
http://www.census.gov/econ/smalIbus.html. Employers with less than 50 employees 
would therefore employ an even higher number of workers. 

67. Certain provisions of the Act do not apply equally to members of certain 
religious groups. See t e.g., 26 U.S.C. §§ 5000A(d)(2)(a)(i) and (ii) (individual mandáte 
does not apply to members of "recognized religious sect or division" that conscientiously 
objects to acceptance of public or priváte insurance funds); 26 U.S.C. 
§ 5000A(d)(2)(b)(ii) (individual mandáte does not apply to members of "health care 
sharing ministry" that meets certain criteria). 



16 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 18 of 46 



68. The Acťs preventivě care requirements do not apply to employers who provide 
so-called "grandfathered" health care plans. 

69. Employers who follow HHS guidelines may continue to use grandfathered 
plans indefinitely. 

70. HHS has predicted that a majority of large employers, employing more than 50 
million Americans, will continue to use grandfathered plans through at least 2014, and 
that a third of small employers with between 50 and 100 employees may do likewise. 
http://www.healthcare.gov/news/factsheets/2010/06/keeping-the-health-plan-you-have- 
grandfathered . htm I . 

71. The Act is not generally applicable because it provides for numerous 
exemptions from its rules. 

72. The Act is not neutral because some individuals and organizations, both 
secular and religious, enjoy exemptions from the law, while other religious individuals 
and organizations do not. 

73. The Act creates a systém of individualized exemptions. 

74. The Department of Health and Human Services has the authority under the Act 
to grant compliance waivers to employers and other health insurance pian issuers ("HHS 
waivers")- 

75. HHS waivers release employers and other pian issuers from complying with 
the provisions of the Act. 



17 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 19 of 46 



76. HHS decides whether to grant waivers based on individualized waiver requests 
from particular employers and other heaith insurance pian issuers. 

77. Upon information and belief, thousands of HHS waivers have been granted. 

78. The Act is not neutral because some secular and religious groups and 
individuals have received statutory exceptions while other religious groups and 
individuals have not. 

79. The Act is not neutral because some secular and religious groups and 
individuals have received HHS waivers while other religious groups and individuals have 
not. 

80. The Act is not generally applicable because Defendants have granted numerous 
waivers from complying with its requirements. 

81. The Act is not generally applicable because it does not apply equally to all 
individuals and pian issuers. 

82. The Act is neither neutral nor generally applicable because Defendants have 
exempted certain religious employers, but not religious businesses and business-owners 
like Plaintiffs. 

83. The Act is neither neutral nor generally applicable because Defendants have 
issued a "safe harbor" protecting certain non-exempt non-profit religious objectors from 
the Mandáte, but not religious businesses and business-owners like Plaintiffs. 



18 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page20of46 



84. The Act is neither neutral nor generally applicable because Defendants have 
stated an intention to make certain non-exempt non-profit religious objectors effectively 
exempt through the ANPRM (described below), but not religious businesses and 
business-owners like Plaintiffs. 

85. Defendants' waiver practices create a systém of individualized exemptions. 
IV. The Preventivě Care Mandáte 

86. One of the provisions of the Affordable Care Act mandates that health plans 
"provide coverage for and shall not impose any cost sharing requirements for . . . with 
respect to women, such additional preventivě care and screenings ... as provided for in 
comprehensive guidelines supported by the Health Resources and Services 
Administration," and directs the Secretary of Health and Human Services to determine 
what would constitute "preventative care" under the mandáte, 42 U.S.C § 300gg- 
13(a)(4). 

87. On July 19, 2010, HHS, along with the Department of Treasury and the 
Department of Labor, published an interim finál rule under the Affordable Care Act. 75 
Fed. Reg. 41726 (201 0). 1 The interim finál rule required providers of group health 
insurance to cover preventivě care for women as provided in guidelines to be published 



For ease of reading, references to "HHS" in this Complaint are to all three 
Departments. 



19 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page21of46 



by the Health Resources and Services Administration at a later date. 75 Fed. Reg. 41759 
(2010). 

88. The Mandáte also requires group health care plans and issuers to provide 
education and counseling for all women benefíciaries with reproductive capacity. 

89. The Mandáte went into effect immediately as an "interim fínal rule." 

90. HHS accepted public comments to the 2010 interim fínal rule until September 
17, 2010. A number of groups filed comments warning of the potential conscience 
implications of requiring religious individuals and groups to pay for certain kinds of 
health care, including contraception, sterilization, and abortion. 

91. HHS directed a priváte health policy organization, the Institute of Medicíně 
("IOM"), to suggest a list of recommended guidelines describing which drugs, 
procedures, and services should be covered by all health plans as preventivě care for 
women. See http://www.hrsa.gov/womensguidelines. 

92. In developing its guidelines, IOM invited a select number of groups to make 
presentations on the preventivě care that should be mandated by all health plans. These 
were the Guttmacher Institute, the American Congress of Obstetricians and 
Gynecologists (ACOG), Prof. John Santelli, a Senior Fellow at the Guttmacher Institute, 
the National Women's Law Center, National Women's Health Network, Planned 
Parenthood Federation of America and Prof. Sara Rosenbaum, a proponent of 
government-funded abortion. 



20 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page22of46 



93. No religious groups or other groups that oppose government-mandated 
coverage of contraception, sterilization, abortion, and related education and counseling 
were among the invited presenters. 

94. One year after the first interim finál rule was published, on July 19, 201 1, the 
IOM published its recommendations. It recommended that the preventivě services 
include "[a]ll Food and Drug Administration approved contraceptive methods [and] 
sterilization procedures." Institute of Medicine, Clinical Preventivě Services for Women: 
Closing the Gaps (July 19, 201 1). 

95. FDA-approved contraceptive methods include birth-control pills; prescription 
contraceptive devices and injections; levonorgestrel, also known as the "morning-after 
pili" or "Pian B"; and ulipristal, also known as "Ella" or the "week-after pili"; and other 
drugs, devices, and procedures. The FDA birth control guide specifically notes that Pian 
B and Ella may work by preventing "attachment (implantation)" of a fertilized egg to a 
woman's uterus. See http://www.fda.gov/downloads/ForConsumers/ByAudience/ 
ForWomen/FreePublications/UCM2820 1 4.pdf. 

96. Thirteen days later, on August 1, 2011, HRSA issued guidelines adopting the 
IOM recommendations. See http://www.hrsa.gov/womensguidelines. On the same day 
HHS, the Department of Labor, and the Department of Treasury promulgated an 
amended interim finál rule which reiterated the Mandáte and added a narrow exemption 



21 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page23of46 



for "religious employerfs]." 76 Fed. Reg. 46621 (pubiished Aug. 3, 2011); 45 C.F.R. 
§ 147.130. 

97. HHS did not take into account the concerns of religious organizations and 
individuals in the comments submitted before the Mandáte was issued. 

98. The Mandáte was unresponsive to the concerns stated in the comments 
submitted by religious organizations and individuals. 

99. When it issued the Mandáte, HHS requested comments from the public by 
September 30, 201 1, and indicated that comments would be available online. 

100. Upon information and belief, over 100,000 comments were submitted against 
the Mandáte and its narrow "religious employer" exemption. 

101. On October 5, 2011, six days after the comment period ended, Defendant 
Sebelius gave a speech at a rundraiser for NARAL Pro-Choice America. She told the 
assembled crowd that "we are in a war." 

102. The Mandáte fails to take into account the statutory and constitutional 
conscience rights of religious individuals like the Green family, even though those rights 
were raised in the public comments, 

103. The Mandáte requires that Plaintiffs provide coverage or access to coverage for 
abortion-causing drugs and related education and counseling against their consciences in 
a manner that is contrary to law. 



22 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page24of46 



104. The Mandáte constitutes government-imposed pressure and coercion on 
Plaintiffs to change or vioíate their religious beliefs. 

105. The Mandáte exposes Plaintiffs to substantial fines and other penalties and 
pressures for refusal to change or violate their religious beliefs. 

106. The Mandáte forces Plaintiffs to provide coverage or access to coverage for 
abortion-causing drugs and devices, including Pian B and Ella, in violation of Plaintiffs' 
religious beliefs. 

107. Plaintiffs have a sincere religious objection to providing coverage for Pian B 
and Ella since they believe those drugs could prevent a human embryo — which they 
understand to include a fertilized egg before it implants in the uterus — from implanting in 
the wall of the uterus, causing the death of the embryo. 

108. Plaintiffs have a sincere religious objection to providing coverage for certain 
contraceptive intrauterine devices or "IUDs" since they believe those devices could 
prevent a human embiyo from implanting in the wall of the uterus, causing the death of 
the embryo. 

109. Plaintiffs consider the prevention by artificial means of the implantation of a 
human embryo to be an abortion. 

1 10. Plaintiffs believe that Pian B, Ella and certain IUDs can cause the death of the 
embryo. 



23 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page25of46 



111. Pian B can prevent the implantation of a human embryo in the wall of the 
uterus. 

1 12. Ella can prevent the implantation of a human embryo in the wall of the uterus. 

113. Certain IUDs can prevent the implantation of a human embryo in the wall of 
the uterus. 

1 14. Pian B, Ella, and certain IUDs can cause the death of the embryo. 

115. The use of artificial means to prevent the implantation of a human embryo in 
the wall of the uterus constitutes an "abortion" as that term is used in federal law. 

1 16. The use of artificial means to cause the death of a human embryo constitutes an 
"abortion" as that term is used in federal law. 

117. The Mandáte forces Plaintiffs to provide insurance coverage or access to 
insurance coverage for abortion-causing drugs and devices, including Pian B and Ella, 
regardless of the abiiity of insured persons to obtain these drugs from other sources. 

118. The Mandáte forces Plaintiffs to provide insurance coverage or access to 
insurance coverage for education and counseling concerning abortion-causing drugs and 
devices that directly conflicts with their religious beliefs and teachings. 

119. Providing thts counseling and education is incompatible and irreconcilable 
with Plaintiffs' express messages and speech. 

120. The Mandáte forces Plaintiffs to choose between violating their religious 
beliefs or terminating employee health insurance coverage and incurring substantial fines. 



24 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page26of46 



121. Group health plans and issuers will be subject to the Mandáte starting with the 
fírst insurance pian year that begins on or after August 1, 2012. 

122. Plaintiffs have already had to devote signifícant institutional resources, 
including both staff time and funds, to determining how to respond to the Mandáte. 
Plaintiffs anticipate continuing to make such expenditures of time and money up until the 
time that the Mandáte goes into effect. 

V. The Narrow and Discretionary Religious Employer Exemption 

123. The Mandáte indicates that that the Health Resources and Services 
Administration ("HRSA") "may" grant religious exemptions to certain religious 
employers. 45 C.F.R. § 147.130(a)(iv)(A). Among other things, those employers must be 
"a nonprofit organization as described in section 6033(a)(l) and section 6033(a)(3)(A)(i) 
or (iii) of the Internal Revenue Code of 1986, as amended." 45 C.F.R, 
§ 147.130(a)(iv)(B). 

124. As a for-profit company, Hobby Lobby does not qualify for this exemption. 

125. After public outcry over the Mandáte, Defendant Sebelius announced that 
"[n]onprofit employers who, based on religious beliefs, do not currently provide 
contraceptive coverage in their insurance pian, will be provided an additional year, until 
August 1, 2013, to comply with the new law," on the condition that those employers 
certify they qualify for the extension. 



25 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page27of46 



126. Hobby Lobby does not qualify for this "safe harbor," since it is a for-profit 
company, 2 

127. On February 10, 2012, President Obama held a press conference at which he 
announced an intention to initiate, at some unspecified future date, a separate rulemaking 
process that would work toward creating a different insurer-based mandáte. This 
promised mandáte would, the President stated, attempt to take into account the kinds of 
religious objections voiced against the originál Mandáte contained in the interim finál 
rule. 

128. On February 15, 2012, Defendants adopted as finál, "without change," the 
narrow "religious employer" exemption. 77 Fed. Reg. 8725, 8727. 

129. On March 16, 2012, Defendants issued an Advance Notice of Proposed 
Rulemaking ("ANPRM"). The ANPRM announced Defendants' intention to create an 
"accommodation" for non-exempt religious organizations under which Defendants would 
require a health insurance issuer (or third party administrátor) to provide coverage for 
these drugs and services — without cost sharing and without charge — to employees 



2 See HHS, Guidance on Temporary Enforcement Safe Harbor, U.S. Dep't OF HEALTH 
& HUMAN Servs. (Feb. 10, 2012), at 3, available at 
http://cciio.cms.gov/resources/files/Files2/02 1 020 1 2/20 1 202 1 O-Preventive-Services- 
Bulletin.pdf (last visited Sept. 10, 2012). The government recently expanded the safe 
harbor, but it still does not include for-profit businesses like Plaintiffs. See HHS, 
Guidance on Temporary Enforcement Safe Harbor, U.S. Dep't of Health & HUMAN 
Servs. (August 15, 2012), available ť7/http://cciio.cms.gov/resources/files/prev-services- 
guidance-08152012.pdf (last visited Sept. 10, 2012). 



26 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page28of46 



covered under the organizatioiťs health pian, The ANPRM solicited public comments on 
structuring the proposed accommodation, and announced Defendants' intention to 
finalize an accommodation by the end of the Safe Harbor period, See 
https://s3.amazonaws.com/public-inspection.federalregister,gov/20 12-06689.pdf 
(published on March 21, 2012). 

130. The ANPRM did not announce any intention to alter the Mandáte or its narrow 
"religious employer" exemption, which was made "finál, without change" on February 
15, 2012. All the ANPRM's suggestions for future rulemaking are limited to non-profit 
religious organizations. The government has made no promises, either in the ANPRM or 
anywhere else, to provide protection for religious business owners like Plaintiffs. 

131. The pian year for Hobby Lobby's and MardePs employee Insurance pian 
begins on January 1 of each year. 

132. The Mandáte takés effect against Hobby Lobby's and MardePs employee 
insurance pian on January 1, 2013. 

133. On January 1, Plaintiffs will face an unconscionable choice: either violate the 
iaw, or violate their faith. 

VI. The Mandate's Effect on the Plaintiffs and the Need for Immediate Reliéf 

134. The Mandáte constitutes government-imposed pressure on Plaintiffs to act 
contrary to their religious beliefs. 



27 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page29of46 



135. The Mandáte exposes Plaintiffs to enormous fines and other penalties and 
pressures if it refuses to comply. 

136. Hobby Lobby has about 13,240 full-time employees as of September 1, 2012, 

137. Mardel has about 372 full-time employees as of September 1, 2012. 

138. The Mandáte imposes a burden on Plaintiffs' employee recruitment and 
retention efforts by creating uncertainty as to how they will be able to offer health 
insurance beyond 2012. 

139. The Mandáte places Plaintiffs at a competitive disadvantage in its efforts to 
recruit and retain employees. 

140. Plaintiffs are planning now for the 2013 insurance pian year. 

141. Every fall, Plaintiffs work with their insurance pian administrators to set up the 
plans for the coming year. The process is time consuming: Plaintiffs' HR department 
must work with its administrators on pian changes and on the production and distribution 
of pian materials and employee insurance cards. 

142. Plaintiffs need immediate reliéf from the Mandáte in order to arrange for and 
continue providing employee health insurance to their employees. Delay could lead to a 
lapse in coverage, placing the health and well-being of thousands of employees and their 
families in jeopardy. Denial of immediate reliéf will force Plaintiffs to choose between 
their religious beliefs and the prospect of crippling fines, regulátory penalties, and 
lawsuits. 



28 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page30of46 



143. The consequences for Plaintiffs' employees would be severe, Thousands of 
families rely on Plaintiffs' insurance plans. 

144. The consequences for Plaintiffs' businesses would be enormous. For example, 
with over 13,000 full-time employees, Hobby Lobby faces fines of about $26 million 
dollars per year if it drops employee insurance altogether, and additional fines of about 
$1.3 million per day if it chooses to offer insurance that does not include all of the 
mandated drugs and services. Plaintiffs will be subject to those penalties on January 1, 
2013. 

CLAIMS 
CQUNT I 

Violation of the Religious Freedom Restoration Act 
Substantial Burden 

145. Plaintiffs incorporate by reference all preceding paragraphs. 

146. Plaintiffs' sincerely held religious beliefs prohibit them from providing 
coverage or access to coverage for abortion-causing drugs or devices or related education 
and counseling. Plaintiffs' compliance with these beliefs is a religious exercise. 

147. The Mandáte creates government-imposed coercive pressure on Plaintiffs to 
change or violate their religious beliefs. 

148. The Mandáte chills Plaintiffs' religious exercise. 

149. The Mandáte exposes Plaintiffs to substantial fines for their religious exercise. 



29 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page31of46 



150. The Mandáte exposes Plaintiffs to substantial competitive dísadvantages, in 
that they may no longer be permitted to offer health insurance. 

151. The Mandáte imposes a substantial burden on Plaintiffs' religious exercise. 

152. The Mandáte furthers no compelling governmental interest. 

153. The Mandáte is not narrowly tailored to any compelling governmental interest. 

154. The Mandáte is not the least restrictive means of fiirthering Defendants' stated 
interests. 

155. The Mandáte and Defendants' threatened enforcement of the Mandáte violate 
Plaintiffs' rights secured to them by the Religious Freedom Restoration Act, 42 U.S.C. 
§ 2000bb et seq. 

156. Absent injunctive and declaratory reliéf against the Mandáte, Plaintiffs have 
been and will continue to be harmed. 

COUNT II 

Violation of the First Amendment to the United States Constitution 

Free Exercise Clause 
Substantial Burden 

157. Plaintiffs incorporate by reference all preceding paragraphs. 

158. Plaintiffs' sincerely held religious beliefs prohibit them from providing 
coverage or access to coverage for abortion-causing drugs or devices or related education 
and counseling. Plaintiffs' compliance with these beliefs is a religious exercise. 

1 59. Neither the Affordable Care Act nor the Mandáte is neutral. 

160. Neither the Affordable Care Act nor the Mandáte is generally applicable. 

30 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page32of46 



161. Defendants have created categorical exemptions and individualized 
exemptions to the Mandáte. 

162. The Mandáte furthers no compelling governmental interest. 

163. The Mandáte is not the least restrictive means of furthering Defendants' stated 
interests. 

164. The Mandáte creates government-imposed coercive pressure on Plaintiffs to 
change or violate their religious beliefs. 

165. The Mandáte chills Plaintiffs' religious exercise. 

166. The Mandáte exposes Plaintiffs to substantial fines for their religious exercise. 

167. The Mandáte exposes Plaintiffs to substantial competitive disadvantages, in 
that they may no longer be permitted to offer health insurance. 

168. The Mandáte imposes a substantial burden on Plaintiffs' religious exercise, 

169. The Mandáte is not narrowly tailored to any compelling governmental interest, 

170. The Mandáte and Defendants' threatened enforcement of the Mandáte violate 
Plaintiffs' rights secured to them by the Free Exercise Clause of the First Amendment to 
the United States Constitution. 

171. Absent injunctive and declaratory reliéf against the Mandáte, Plaintiffs have 
been and will continue to be harmed. 



31 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page33of46 



COUNT III 

Violation of the First Amendment to the United States Constitution 

Free Exercise Clause 
Intentional Discrimination 

172. Plaintiffs incorporate by reference all preceding paragraphs. 

173. Plaintiffs sincerely held religious beliefs prohibit them from providing 
coverage or access to coverage for abortion-causing drugs or devices or related education 
and counseling. Plaintiffs' compliance with these beliefs is a religious exercise. 

174. Despite being informed in detail of these beliefs beforehand, Defendants 
designed the Mandáte and the religious exemption to the Mandáte in a way that made it 
impossible for Plaintiffs to comply with both their religious beliefs and the Mandáte. 

175. Defendants promulgated both the Mandáte and the religious exemption to the 
Mandáte in order to suppress the religious exercise of Plaintiffs and others. 

176. The Mandáte and Defendants' threatened enforcement of the Mandáte thus 
violate the Plaintiffs rights secured to them by the Free Exercise Clause of the First 
Amendment to the United States Constitution. 

177. Absent injunctive and declaratory reliéf against the Mandáte, Plaintiffs have 
been and will continue to be harmed. 



32 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page34of46 

CQUNT IV 

Religious Discrimination — 
Violation of the First and Fifth Amendments to the United States Constitution 
Free Exercise and Establishment Ciauses; Due Process and Equal Protection 

178. Plaintiffs incorporate by reference all preceding paragraphs. 

179. By design, Defendants imposed the Mandáte on some religious individuals and 
organizations but not on others, resulting in discrimination among religious objectors. 

180. The Mandáte vests HRSA with unbridled discretion in deciding whether to 
allow exemptions to some, all, or no organizations meeting the definition of "religious 
employers." 

181. Religious liberty is a ťundamental right. 

182. The "religious employer" exemption protects many religious objectors, but not 
Plaintiffs. 

183. The "safe harbor" protects many religious objectors, but not Plaintiffs. 

184. The ANPRM promises protection to many religious objectors, but not 
Plaintiffs. 

185. The Mandáte and Defendants' threatened enforcement of the Mandáte thus 
violate Plaintiffs' rights secured to them by the Free Exercise and Establishment Ciauses 
of the First Amendment to the United States Constitution and by Due Process Clause of 
the Fifth Amendment to the United States Constitution. 

186. Absent injunctive and declaratory reliéf against the Mandáte, Plaintiffs have 
been and will continue to be harmed. 



33 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page35of46 



CQUNT V 

Violation of the First Amendment ťo the United States Constitution 

Freedom of Speech 
Compelled Speech 

1 87. Plaintiffs incorporate by reference ai! preceding paragraphs. 

188. Plaintiffs believe and profess that providing abortion-causing drugs and 
devices violates their religious beliefs. 

189. The Mandáte would compel Plaintiffs to cooperate in activities through its 
provision of health insurance that are violations of Plaintiffs' religious beliefs. 

190. The Mandáte would compel Plaintiffs to provide education and counseling 
related to abortion-causing drugs and devices. 

191. Defendants' actions thus violate Plaintiffs' right to be free from compelled 
speech as secured to it by the First Amendment to the United States Constitution. 

192. The Mandáte' s compelled speech requirement is not narrowly tailored to a 
compelling governmental interest. 

193. Absent injunctive and declaratory reliéf against the Mandáte, Plaintiffs have 
been and will continue to be harmed. 



34 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page36of46 



COUNT VI 

Violation of the First Amendment to the United States Constitution 

Freedom of Speech 
Expressive Association 

194. Plaintiffs incorporate by reference all preceding paragraphs. 

195. The Mandáte would compel Plaintiffs to cooperate in activities through their 
provision of health insurance that are violations of Plaintiffs' religious beliefs. 

196. The Mandáte would compel Plaintiffs to provide, through their provision of 
health insurance, education and counseling related to abortion-causing drugs and devices. 

197. Defendants' actions thus violate Plaintiffs' right of expressive association as 
secured to it by the First Amendment of the United States Constitution. 

198. Absent injunctive and declaratory reliéf against the Mandáte, Plaintiffs have 
been and will continue to be harmed. 

COUNT VII 

Violation of the Administrativě Proceduře Act 
Lack of Good Cause 

199. Plaintiffs incorporate by reference all preceding paragraphs. 

200. Defendants' stated reasons that public comments were unnecessary, 
impractical, and opposed to the public interest are falše and insufficient, and do not 
constitute "good cause." 

201. Without proper notice and opportunity for public comment, Defendants were 
unable to take into account the full implications of the regulations by completing a 



35 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page37of46 



meaningful "consideration of the relevant matter presented." Defendants did not consider 
or respond to the voluminous comments they received in opposition to the interim finál 
rule, 

202. Therefore, Defendants have taken agency action not in observance with 
procedures required by law, and Plaintiffs are entitled to reliéf pursuant to 5 U.S.C. 
§ 706(2)(D). 

203. Absent injunctive and declaratory reliéf against the Mandáte, Plaintiffs have 
been and will continue to be harmed. 

CQUNT VIII 

Violation of the Administrativě Proceduře Act 
Arbitrary and Capricious Action 

204. Plaintiffs incorporate by reference all preceding paragraphs. 

205. In promulgating the Mandáte, Defendants failed to consider the constitutional 
and statutory implications of the mandáte on Plaintiffs and similar organizations and 
individuals. 

206. Defendants' explanation for their decision not to exempt Plaintiffs and similar 
religious individuals from the Mandáte runs counter to the evidence submitted by 
religious individuals during the comment period. 

207. Thus, Defendants' issuance of the interim finál rule was arbitrary and 
capricious within the meaning of 5 U.S.C. § 706(2)(A) because the rule fails to consider 



36 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page38of46 



the fiill extent of the Mandate's implications and does not take into consideration the 
evidence against it. 

208. Absent injunctive and declaratory reliéf against the Mandáte, Plaintiffs have 
been and wili continue to be harmed. 

CQUNT IX 

Violation of the Administrativě Proceduře Act 
Agency Action Not in Accordance with Law 
Weldon Amendment 
Religious Freedom Restoration Act 
First Amendment to the United States Constitutíon 

209. Plaintiffs incorporate by reference all preceding paragraphs. 

210. The Mandáte is contrary to the provisions of the Weldon Amendment of the 
Consolidated Security, Disaster Assistance, and Continuing Appropriations Act of 2009, 
Public Law 110 329, Div. A, Sec. 101, 122 Stat. 3574, 3575 (Sept. 30, 2008). 

211. The Weldon Amendment provides that "[n]one of the funds made available in 
this Act [making appropriations for Defendants Department of Labor and Health and 
Human Services] may be made available to a Federal agency or program . . . if such 
agency, program, or government subjects any institutional or individual health care entity 
to discrimination on the basis that the health care entity does not provide, pay for, provide 
coverage of, or refer for abortions." 

212. The Mandáte requires issuers, including Plaintiffs, to provide coverage or 
access to coverage of all FDA-approved "contraceptives." 



37 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page39of46 

213. Some FDA-approved "contraceptives" cause abortions. 

214. As set forth above, the Mandáte violates RFRA and the First Amendment. 

215. Under 5 U.S.C. § 706(2)(A), the Mandáte is contrary to existing law, and is in 
violation of the APA. 

216. Absent injunctive and declaratory reliéf against the Mandáte, Plaintiffs have 
been and will continue to be harmed. 

COUNT X 

Violation of the Administrativě Proceduře Act 
Agency Action Not in Accordance with Law 
Affordable Care Act 

217. Plaintiffs incorporate by reference all preceding paragraphs. 

218. The Mandáte is contrary to the provisions of the Affordable Care Act. 

219. Section 1303(b)(l)(A) of the Affordable Care Act states that "nothing in this 
title" — i.e., title I of the Act, which includes the provision dealing with "preventivě 
services" — "shall be construed to require a qualified health pian to provide coverage of 
[abortion] services ... as part of its essential health benefits for any pian year." 

220. Section 1303 further states that it is "the issuer" of a pian that "shall determine 
whether or not the pian provides coverage" of abortion services. 

22 1 . Under the Affordable Care Act, Defendants do not have the authority to decide 
whether a pian covers abortion; only the issuer does. 



38 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 40 of 46 

222, The Mandáte requires issuers, including Plaintiffs, to provide coverage or 
access to coverage for all Federal Drug Administration-approved contraceptives. 

223, Some FDA-approved contraceptives cause abortions. 

224. Under 5 U.S.C. § 706(2)(A), the Mandáte is contrary to existing law, and is in 
violation of the APA. 

225. Absent injunctive and declaratory reliéf against the Mandáte, Plaintiffs have 
been and will continue to be harmed. 

PRAYER FOR RELIÉF 
Wherefore, Plaintiffs respectfully request that the Court: 

a. Declare that the Mandáte and Defendants' enforcement of the Mandáte against 
Plaintiffs violate the First and Fifth Amendments to the United States 
Constitution; 

b. Declare that the Mandáte and Defendants' enforcement of the Mandáte against 
Plaintiffs violate the Religious Freedom Restoration Act; 

c. Declare that the Mandáte was issued in violation of the Administrativě 
Proceduře Act; 

d. Issue a permanent injunction prohibiting enforcement of the Mandáte against 
Plaintiffs and other individuals and organizations that object on religious 
grounds to providing insurance coverage for abortion-causing drugs and 
devices, and related education and counseling; 



39 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page41of46 



e. Award Plaintiffs the costs of this action and reasonable attorney's fees; and 

f, Award such other and further reliéf as it deems equitable and just. 

JURY DEMAND 
Plaintiffs request a trial by jury on all issues so triable. 

Respectfully submitted this 12th day of September, 2012. 

/s/ Charles E. Geister III 

Charles E, Geister III, OBA No. 33 1 1 
Derek B. Ensminger, OBA No. 22559 
Hartzog, Conger, Cason & Neville 
1600 Bank of Oklahoma Plaza 
201 Robert S. Kerr Avenue 
Oklahoma City, OK 73102 
Telephone: (405) 235-7000 
Facsimile: (405) 996-3403 
cgeister@hartzoglaw.com 
densminger@hartzoglaw.com 

-And- 

S. Kýle Duncan, LA Bar No. 25038 

{Motion for Pro Hac Vice pending) 

Eric S. Baxter, D.C. Bar No. 479221 

{Motion for Pro Hac Vice pending) 

Lori Halstead Windham, D.C. Bar No. 501838 

{Motion for Pro Hac Vice pending) 

The Becket Fund for Religious Liberty 

3000 K Street, N.W., Suitě 220 

Washington, D.C. 20007 

Telephone: (202) 955-0095 

Facsimile: (202) 955-0090 

kduncan @becketfund . org 

ATTORNEYS FOR PLAINTIFFS 



40 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page42of46 

VĚRiFICATION OF COMPLAINT ACCORDING TO 28 U.S.C. § 1746 

I dcclarc undcr penalty of perjury ihat the ťoregoing is írUc and cotreel to the best of 
my knowledge. 

Exccutcd on Scptcnibcr 12, 2012 /") a 




*/ certify that I havc the signed originál of 
thix document, whivh Ls available for 
hupection at any time by the Court or a 
party to this ucti on. 



41 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page43of46 

VERIFICATION OF COMPLAINT ACCORDING TO 28 V.S.C. § 1746 

I dcclarc undcr penalty oi* per jury lhai tne forogoing is truc and correcí to the bcsi of 
my knowledge. 

Exccutecl on Seplember 12, 2012 /O / 




Barbara Crčen* 



*/ certify that i have the signed originál of 
this document, which is available for 
inspection at any úme by the Court or a 
party to (his action. 



42 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 44 of 46 

VERIFICATION OF COMPLAINT ACCORDING TO 28 U.S.C. § 1746 

I dcclarc undcr penalty of peijury that the Ibrcgoing is truc and correci lo thc bmi of 
my knowledgc. 

Bxectiledon Scpícmbcr 12, 2012 ( / 




*/ certify that l have the signed originál of 
this document, wliich m available far 
inspection at any time by the Court or a 
party to this acúon. 



43 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page45of46 



VERIFICATION OF COMPLAINT ACCORDING TO 28 U.S.C. § 1746 

I dcciarc undor penalty of perjury that Ihc ťoregoing is truc and correel to the bcst of 



my knowlcdgo. 

Exoculcd on Scplcmbcr !2, 2012 




:i 7 certify lhát l háve the signed originál of 
this document, which is available for 
impection at any dme by the Court or a 
party to this action. 



44 



Case 5:12-cv-01000-HE Document 1 Filed 09/12/12 Page 46 of 46 



VER1FICATION OF COMPLAINT ACCORDING TO 28 U.S.C. § 1746 



[ deehire undcr penalty oí perjuiy lhal ihc forcgoing is truc and corrcct to ihc focsl of 



my knowledgc. 



Executed on Septem ber 12, 2012 




Darsee Lell !|: 

*/ certify that I háve the signed originál of 
títix document, which is avaifab/e for 
impection at any time by the Court or a 
party to this acthii. 



45 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 1 of 31 



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF OKLAHOMA 



HOBBY LOBBY STORES, INC., 
MARDEL, INC., DAVID GREEN, 
BARBARA GREEN, STEVE GREEN, 
MART GREEN, AND DARSEE LETT, 



Plaintiffs, 

v. 



KATHLEEN SEBELIUS, Secretary of the 
United States Department of Health and 
Human Services, UNITED STATES 
DEPARTMENT OF HEALTH AND 
HUMAN SERVICES, HILDA SOLIS, 
Secretary of the United States Department 
of Labor, UNITED STATES 
DEPARTMENT OF LABOR, TIMOTHY 
GEITHNER, Secretary of the United States 
Department of the Treasury, and UNITED 
STATES DEPARTMENT OF THE 
TREASURY, 



Case No. CIV-12-1000-HE 



Defendants. 



PLAINTIFFS' MOTION FOR 
PRELIMINARY INJUNCTION AND OPENING BRIEF IN SUPPORT 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 2 of 31 



TABLE OF CONTENTS 



TABLE OF AUTHORITIES iii 

INTRODUCTION 1 

FACTUAL B ACKGROUND 2 

I. THE GREEN FAMILY AND HOBBY LOBBY 2 

II. THE HHS MANDÁTE 3 

III. THE MANDÁTE' S IMMINENT IMPACT ON PLAINTIFFS 5 

IV. PROCEDURAL HISTORY 6 

ARGUMENT 6 

I. PLAINTIFFS ARE LIKEL Y TO SUCCEED ON THE MERITS 7 

A. The mandáte violates the Religious Freedom Restoration Act 7 

1. Plaintiffs' sincere abstention from providing abortion-causing drugs 

and devices qualifies as a religious exercise 8 

2. The mandáte substantially burdens Plaintiffs' religious exercise by 
forcing them to choose between following their convictions and 
paying enormous fines 9 

3. The mandáte cannot satisfy strict scrutiny 10 

a. The mandáte furthers no compelling interest because the 
government has issued numerous exemptions and because 
contraception is already widely available 11 

b. Defendants already have numerous less restrictive means of 
furthering their interest 15 

B. The mandáte violates the Free Exercise Clause 17 

1. The mandáte is not neutral because it exempts some religious 
employers while compelling others 18 

2. The mandáte is not generally applicable due to its numerous 
exemptions 19 



i 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 3 of 31 



II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM IN THE 



ABSENCE OF PRELIMINARY RELIÉF 20 

III. THE BALANCE OF EQUITIES TIPS IN PLAINTIFFS' FA VOR 21 

IV. AN INJUNCTION IS IN THE PUBLIC INTEREST 22 

CONCLUSION 22 

CERTIFICATE OF SERVICE 24 

EXHIBITS 

Newlandw. Sebelius, No. 12-1123 (D. Colo. July 27, 2012) Ex. 1 



ii 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 4 of 31 



TABLE OF AUTHORITIES 

Cases 



Abdulhaseeb v. Calbone, 

600 F.3d 1301 (lOth Cir. 2010) 9, 10 

Ashcroft y.ACLU, 

542 U.S. 656 (2004) 8 

Awad v. Ziriax, 

670 F.3d 1111 (lOth Cir. 2012) 6, 7 

Belmont Abbey College v. Sebelius, 

No.l 1-1989 (D.D.C. July 18, 2012) 5 

Brown v. Entm't Merch, Ass'n, 

131S.Q. 2729 (2011) 14 

Cal. Democratic Party v. Jones, 

530 U.S. 567 (2000) 11 

Church ofthe Lukumi Babalu Aye v. City ofHialeah, 

508 U.S. 520 (1993) passim 

City ofBoerne v. Flores, 

521 U.S. 507 (1997) 11 

Comanche Nation v. United States, 

2008 WL 4426621 (W.D. Okla. Sept. 23, 2008) 9 

Elrod v. Burns, 

427 U.S. 347 (1976) 20 

Employment Div. v. Smith, 

494 U.S. 872 (1990) 9, 17, 19 

Gonzales v. O Centro Espirita Beneficente do Vegetal, 

546 U.S. 418 (2006) passim 

Grutter v. Bollinger, 

539 U.S. 306 (2003) 17 

Kikumura v. Hurley, 

242 F.3d 950 (lOth Cir. 2001) 8, 20 



iii 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 5 of 31 



Newlandv. Sebelius, 

No. 12-1123 (D. Colo. July 27, 2012) passim 

O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 

389 F.3d 973 (lOth Cir. 2004) 6, 22 

Okla. ex rel. Okla. Tax Comm'n v. Inťl Registration Pian, Inc., 

455 F.3d 1107 (lOth Cir. 2006) 7 

Pac. Frontier v. Pleasant Grove City, 

414 F.3d 1221 (lOth Cir. 2005) 22 

Sherbertv. Verner, 

374 U.S. 398 (1963) 7, 8, 10, 15 

Thiry v. Carlson, 

78 F.3d 1491 (lOth Cir. 1996) 9 

Thomas v. Collins, 

323 U.S. 516 (1945) 11 

Thomas v. Review Bd., 

450 U.S. 707 (1981) 8 

Turner Broad. Sys. Inc. v. FCC, 

512 U.S. 624 (1994) 11 

United States v. Friday, 

525 F.3d 938 (lOth Cir. 2008) 9, 12 

United States v. Hardman, 

297 F.3d 1116 (lOthCir. 2002) 7, 9, 11, 15 

United States v. Playboy Enťmt Group, Inc., 

529 U.S. 803 (2000) 11, 15 

Wheaton Coll. v. Sebelius, 

No. 12-1169 (D.D.C. Aug. 24, 2012) 5 

Winter v. Nat. Res. Def. Council, Inc. , 

555 U.S. 7 (2008) 20 

Wisconsin v. Yoder, 

406 U.S. 205 (1972) 7, 8, 10 



iv 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 6 of 31 



Statutes 

26 U.S.C. §4980D 4, 6, 10 

26 U.S.C. § 4980H 4, 6, 10, 12 

26 U.S.C. § 5000A 12 

29 U.S.C. § 1132 4, 6, 10 

29 U.S.C. § 1185d 4,6 

42 U.S.C § 300gg-13 4 

42 U.S.C. § 18011 12 

Religious Freedom Restoration Act passim 

Religious Land Use and Institutionalized Persons Act 8, 9 

Other Authorities 

Department of Health and Human Services, Office of the Assistant 
Secretary of Health, Office of Population Affairs, Announcement of 
Anticipated Availability of Funds for Family Planning Services Grants 16 

Facts on Publicly Funded Contraceptive Services in the United States 16 

FDA Birth Control Guide 4 

Keeping the Health Pian You Have: The Affordable Care Act and 

"Grandfathered" Health Plans 12 

Statement by U.S. Department of Health and Human Services Secretary 

Kathleen Sebelius 14, 19 

U.S. Const., amend. 1 2, 17, 20 

Women's Preventivě Services: Required Health Pian Coverage Guidelines 4 

Regulations 

45 C.F.R. § 147.130 4, 18 

75 Fed. Reg. 41726 4 

76 Fed. Reg. 46621 4 

v 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 7 of 31 

77 Fed. Reg. 16501 5 

77 Fed. Reg. 8725 4, 12 

Rules 

Fed.R. Civ.Proc. 65 1 

W.D.Okla. Civ. R. 7.1 1 



vi 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 8 of 31 



INTRODUCTION 

Plaintiffs, a devout Christian family, have built one of largest and most successful 
retail chains in America. Their faith is woven into their business. It is reflected in what 
they seli, in how they advertise, in how they treat employees, in how much they give to 
charity, and in the one day of the week when their stores are closed. In a profound way, 
their business is a ministry. 

The Defendant government officials have issued a rule (the "mandáte") that requires 
millions of American business owners, including Plaintiffs, to cover abortion-inducing 
drugs and devices in employee health insurance. Plaintiffs' religious convictions forbid 
them from complying. Thanks to the mandáte, the price of those convictions will be 
steep. Plaintiffs face fines of millions of dollars if they do not give in. The fines start 
January 1, 2013. 

Levying fines on someone for folio wing their faith is wrong. It is alien to our 
American traditions of individual liberty, religious tolerance, and limited government. It 
also violates federal law and the United States Constitution. Plaintiffs have therefore filed 
this lawsuit and simultaneously brought this motion for preliminary injunction pursuant 
to Federal Rule of Civil Proceduře 65 and Local Civil Rule 7.1. 

In the only similar decision to date, a federal district court in Colorado granted a 
preliminary injunction to another family business who faced imminent exposure to the 
mandáte. See Newland v. Sebelius, No. l:12-cv-1123, slip op. at 17-18 (D. Colo. July 27, 
2012) (order granting preliminary injunction) (Ex. 1). Plaintiffs are in the same position, 
and deserve the same remedy. Preliminary reliéf is warranted because the mandáte 

1 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 9 of 31 



violates the Religious Freedom Restoration Act (RFRA) and the First Amendment, and 

because Plaintiffs otherwise face the imminent prospect of irreparable harm to their 

religious freedom, to their businesses, and to their employees' well-being. 

FACTUAL BACKGROUND 
I. The Green family and Hobby Lobby 

As set forth in Plaintiffs' Verified Complaint, incorporated herein, Plaintiffs are a 

family that, through various trusts, owns and operates Hobby Lobby Stores, Inc. Verified 
Compl. ("VC") ff 2-3, 18-24, 38. Founded by Plaintiff David Green in 1970, Hobby 
Lobby has grown from a small picture frame company into one of the nation's leading 
arts and crafts chains, operating over 500 stores in over 40 with over 13,000 full-time 
employees. VC ff 2, 18, 32-34. Steve is Hobby Lobby' s President, Darsee a Vice- 
president, and Mart a Vice-CEO and the founder and CEO of Mardel, Inc., an affiliated 
chain of Christian bookstores. VC 18-22, 36-38. The Green family operates Hobby 
Lobby and Mardel through a management trust. VC ff 23-24, 38. 

The Greens run Hobby Lobby according to their Christian faith. VC ff 39-47. As 
explained in the company' s statement of purpose, they are committed to "[hjonoring the 
Lord in all we do by operating the company in a manner consistent with Biblical 
principles." VC 1 42. The family members sign a Statement of Faith and a Trustee 
Commitment obligating them to conduct themselves and their businesses according to 
their faith. YCf 38. 

That faith is woven into how the family runs Hobby Lobby. The company takés out 
hundreds of full-page ads every Christmas and Easter celebrating the religious nature of 



2 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 10 of 31 



the holidays. VC f 47. The stores carry religiously themed items and play Christian 
music. VC f 43. The family monitors merchandise, marketing, and operations to make 
sure all reflect their beliefs, and they avoid participating in activities they believe to be 
immoral or harmful to others. VC H 43-44. They give millions from their profits to fund 
ministries around the world. VC ff 39-40. Chaplains, spirituál counseling, and 
religiously-themed financial management classes are made available for employees who 
wish to participate. VC ^51. And, as is well-known, the Greens close all stores on 
Sundays to give employees a day of rest, even though they risked losing millions in sales 
by doing so. VC ( H45. 

The Green family also provides excellent employee health insurance through a self- 
funded pian. VC f 52. As with all aspects of their business, the Greens believe it is 
imperative that these benefits honor their religious convictions. Id. Because of their 
beliefs about unborn human life, their prescription coverage excludes contraceptive 
devices that can cause abortion (such as IUDs) and pregnancy-terminating drugs like RU- 
486. VC H 53-54. When a recent review of the company's health plans revealed that a 
drug formulary inadvertently included two drugs that could cause abortion — námely the 
"morning after pili" (Pian B), and the "week-after pili" (Ella) — the family immediately 
excluded them. VC f 55. The Green family cannot in good conscience knowingly offer 
coverage for abortion-causing drugs or devices. VC ff 53-58. 

II. The HHS Mandáte 

Federal regulations now mandáte that employer health insurance include free 

coverage for all FDA-approved contraceptive drugs and sterilization methods. 42 U.S.C 

3 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 11 of 31 



§ 300gg-13(a)(4); 75 Fed. Reg. 41726, 41728 (July 19, 2010); 76 Fed. Reg. 46621, 
46626 (Aug. 3, 2011); VC ffí 94-95. This mandáte includes drugs and devices — such as 
"Pian B," "Ella" and certain IUDs — that may prevent implantation of a fertilized egg in 
the womb. VC SI 95. 1 The mandáte is enforceable by government penalties, regulátory 
action, and priváte lawsuits. 26 U.S.C. §§ 4980H, 4980D; 29 U.S.C. §§ 1185d, 1132; VC 
H 135, 142, 144. Certain non-profit religious employers — essentially those qualifying as 
houses of worship under the Internal Revenue Code — are exempt from the mandáte. See 
45 C.F.R. § 147.130(a)(l)(iv)(B)(l)-(4) (setting forth exemption criteria); VC f 123. For 
non-exempt employers (such for-profit business owners), the mandáte takés effect 
beginning with the first insurance pian year after August 1, 2012. 42 U.S.C. § 300gg- 
13(b); 76 Fed. Reg. 46621, 46623; VC ff 121, 132. 

In response to public outcry, 2 the government announced a "safe harbor," which 
delays the mandáte' s enforcement for one year against certain non-profit, non-exempt 
organizations. VC ff 125-26. The government also announced its intention to formulate 
an additional rule during that year that would address those organizations' concerns. See 
"Advance Notice of Proposed Rulemaking" (ANPRM), 77 Fed. Reg. 16501 (published 



See Women's Preventivě Services: Required Health Pian Coverage Guidelines, 
available at http://www.hrsa.gov/womensguidelines/ (last visited Sept. 9, 2012); FDA 
Birth Control Guide, available at http://www.fda.gov/downloads/ForConsumers 
/ByAudience/ForWomen/FreePublications/UCM282014.pdf (last visited Sept. 9, 2012). 

2 See 76 Fed. Reg. 46621, 46623 (Aug. 3, 2011); 77 Fed. Reg. 8725, 8726 (Feb. 15, 
2012) (discussing public comments). Further, currently pending against the mandáte are 
26 lawsuits by more than 80 organizations and individuals. See Dkt [#5], Notice of 
Related or Companion Cases (Sept. 12, 2012). 



4 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 12 of 31 



Mar. 21, 2012); VC f 129-30. Neither the safe harbor nor the proposed rulemaking apply 
to for-profit businesses. VC ff 126, 130. 

III. The Mandáte ' s imminent impact on Plaintiffs 

The mandáte will take effect against Plaintiffs on January 1, 2013. See VC fft 131-32 

(alleging that Plaintiffs' pian year begins on January 1). Because they own a for-profit 
business, Plaintiffs are not covered by the religious employer exemption, the safe harbor, 
or the proposed future rulemaking. VC ff 124, 126, 130. 3 Nor are Plaintiffs' health plans 
"grandfathered" under the Affordable Care Act. VC f 59. Consequently, in less than four 
months, Plaintiffs must either violate their faith by covering abortion-causing drugs, or 
exposé themselves to ruinous penalties. VC ff 134-44. 

Hobby Lobby currently has over 13,000 full-time employees. VC f 136. If Hobby 
Lobby continues to offer employee health insurance without the mandated items on 
January 1, 2013, it will incur penalties of about $1.3 million per day, VC f 144; 26 
U.S.C. § 4980D, and will exposé itself to priváte enforcement suits. 29 U.S.C. §§ 
1185d(a)(l), 1132. If it instead ceases to offer employee insurance, it will face annual 
penalties of about $26 million per year. VC f 144; 26 U.S.C. § 4980H. Mardel faces 
similar penalties with respect to its 372 full-time employees. VC f 137. 



The fact that Plaintiffs do not not qualify for the safe harbor and could not benefit 
from the proposed rulemaking sharply distinguishes their situation from that of Belmont 
Abbey College and Wheaton College, whose lawsuits were recently dismissed without 
prejudice for lack of standing and ripeness. See Belmont Abbey College v. Sebelius, 
No.l 1-1989, slip op. at 14-22 (D.D.C. July 18, 2012) (order dismissing lawsuit without 
prejudice); Wheaton Coll. v. Sebelius, No. 12-1169, slip op. at 7-18 (D.D.C. Aug. 24, 
2012) (same). 



5 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 13 of 31 



As they do every fall, Plaintiffs are now planning for the 2013 insurance pian year. 
VC ff 140-41. This is a complex and time-consuming process. Id The approaching 
mandáte casts grave uncertainty on Plaintiffs' ability to provide insurance for thousands 
of employees and their families next January — less than four months' time. VC f 142. A 
lapse in coverage would be disastrous for Plaintiffs' businesses and for the employees 
and their families who depend on Plaintiffs' insurance. VC ff 142-43. 

IV. Procedural History 

Plaintiffs filed their complaint on September 12, 2012, challenging the mandáte on a 

variety of constitutional and statutory grounds. They simultaneously filed this motion 
seeking preliminary injunctive reliéf. 

ARGUMENT 

To obtain a preliminary injunction, Plaintiffs must show (1) a likelihood of success on 
the merits, (2) a threat of irreparable harm, which (3) outweighs any harm to the non- 
moving party, and that (4) the injunction would not adversely affect the public interest. 
Awad v. Ziriax, 670 F.3d 1111, 1125 (lOth Cir. 2012). Plaintiffs need not meet the 
heightened standard for "disfavored" injunctions because the reliéf sought would 
preserve the status quo and require no government action. See Newland, slip op. at 6-7 
(citing O Centro Espirita Beneficente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 
(lOth Cir. 2004) (en banc), affd and remanded, Gonzales v. O Centro Espirita 
Beneficente do Vegetal, 546 U.S. 418 (2006)). Moreover, if the equities strongly favor 
Plaintiffs, they may show likelihood-of-success simply by showing the issues are "so 
serious, substantial, difficult, and doubtful as to make the[m] ripe for litigation and 



6 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 14 of 31 



deserving of more deliberate investigation." Newland, slip op. at 7-8 (citing Okla. ex rel. 

Okla. Tax Comm'n v. Inťl Registration Pian, Inc., 455 F.3d 1107, 1113 (lOth Cir. 

2006)). In any event, Plaintiffs would be entitled to preliminary reliéf even under the 

heightened standard. See, e.g., Awad, 670 F.3d at 1126 (declining to decide whether "less 

demanding standard" applies because plaintiff "meets the heightened standard"). 

I. Plaintiffs are likely to succeed on the merits. 

A. The mandáte violates the Religious Freedom Restoration Act. 

Under RFRA, the federal government "may substantially burden a person's exercise 

of religion only if it demonstrates that application of the burden to the person (1) is in 
furtherance of a compelling governmental interest; and (2) is the least restrictive means 
of furthering that compelling governmental interest." 42 U.S.C. §2000bb-l(b); see also, 
e.g., United States v. Hardman, 297 F.3d 1116, 1125 (lOth Cir. 2002) (en banc). RFRA 
thus restored strict scrutiny to religious exercise claims. Gonzales, 546 U.S. at 424, 431; 
see also 42 U.S.C. § 2000bb(b)(l) (RFRA "restore[s] the compelling interest test as set 
forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconsin v. Yoder, 406 U.S. 205 
(1972)). " 4 A plaintiff makes a prima facie case under RFRA by showing the government 
substantially burdens its sincere religious exercise. Kikumura v. Hurley, 242 F.3d 950, 
960 (lOth Cir. 2001). The burden then shifts to the government to show that "the 
compelling interest test is satisfied through application of the challenged law 'to the 

Although RFRA is unconstitutional as applied to States, it "independently remains 
applicable to federal officials." Hardman, 297 F.3d at 1126 (quotes omitted). Further, 
RFRA applies "to all Federal law, and the implementation of that law, whether statutory 
or otherwise, and whether adopted before or after November 16, 1993." 42 U.S.C. § 
2000bb-3(a). 



7 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 15 of 31 



person' — the particular claimant whose sincere exercise of religion is being substantially 

burdened." Gonazles, 546 U.S. at 430-31 (quoting 42 U.S.C. § 2000bb-l(b)). 5 

1. Plaintiffs' sincere abstention from providing abortion-causing drugs and 
device s qualifies as a religious exercise. 

RFRA broadly defines "religious exercise" to "include[] any exercise of religion, 
whether or not compelled by, or centrál to, a systém of religious belief.'" 42 U.S.C. § 
2000bb-2(4), as amended by 42 U.S.C. § 2000cc-5(7)(A); see also Kikumura, 242 F.3d at 
960 (explaining that "a religious exercise need not be mandatory for it to be protected 
under RFRA"). 

The Green family has maintained a commitment to running their business in harmony 
with their faith despite risking the loss of millions in profits. VC ff 39-49. They 
conscientiously oppose supporting activities or products they regard as immoral or 
harmful to others. VC ff 43-44. This includes abortion-causing drugs and devices, which 
are explicitly excluded from their insurance plans. VC f 53-56. Abstaining for religious 
reasons from providing such items easily qualifies as "religious exercise," just as much as 
abstaining from work on certain days, see Sherbert v. Verner, 374 U.S. 398 (1963), 
refusing to manufacture objectionable items, see Thomas v. Review Bd., 450 U.S. 707 
(1981), or providing alternativě education for children, see Wisconsin v. Yoder, 406 U.S. 
205 (1972)). See also 42 U.S.C. § 2000bb(b)(l) (incorporating Sherbert and Yoder in 
RFRA); and see Employment Div. v. Smith, 494 U.S. 872, 877 (1990) (observing that 



These burdens are the same at the preliminary injunction stage as at trial. Id. at 
429-30 (citing Ashcroft v. ACLU, 542 U.S. 656, 666 (2004)). 



8 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 16 of 31 



"the 'exercise of religion' often involves not only belief and profession but the 

performance of (or abstention from) physical acts") (emphasis added). 

2. The mandáte substantially burdens Plaintiffs' religious exercise by forcing 
them to choose between following their convictions and paying enormous 
fines. 

The government "substantially burdens" religious exercise when a law "ha[s] a 
substantial effect on the exercise of religious belief." United States v. Friday, 525 F.3d 
938, 947 (lOth Cir. 2008) (quoting Hardman, 297 F.3d at 1126-27). Under RFRA's 
companion statute, RLUIPA, the Tenth Circuit finds a substantial burden when the 
government: 

(1) "requires participation in an activity prohibited by a sincerely held 
religious belief," 

(2) "prevents participation in conduct motivated by a sincerely held religious 
belief," or 

(3) "places substantial pressure on an adherent either not to engage in conduct 
motivated by a sincerely held religious belief or to engage in conduct 
contrary to a sincerely held religious belief[.]" 

Abdulhaseeb v. Calbone, 600 F.3d 1301, 1315 (lOth Cir. 2010). 6 The mandáte easily 
qualifies as a substantial burden under the first and third prongs of that test. 

As to the first prong, the mandáte compels Plaintiffs to provide employees with 
insurance coverage they believe implicates them in an immoral practice. VC ff 53-56. As 
to the third prong, the mandáte pressures Plaintiffs by exacting a steep price for 



See also Comanche Nation v. United States, 2008 WL 4426621, at *3 (W.D. Okla. 
Sept. 23, 2008) (observing that Tenth Circuit had defined "substantial burden" under a 
pre-RLUIPA version of RFRA as a government action which "must 'significantly inhibit 
or constrain conduct or expression' or 'deny reasonable opportunities to engage in' 
religious activities") (citing Thiry v. Carlson, 78 F.3d 1491, 1495 (lOth Cir. 1996)). 



9 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 17 of 31 



maintaining their beliefs. The Greens can continue to exercise their faith only by 
dropping insurance and facing penalties of about $26 million per year, or by offering 
insurance without the mandated coverage and facing penalties of $1.3 million per day (as 
well as the prospect of priváte lawsuits). 26 U.S.C. §§ 4980D, 4980H; 29 U.S.C. § 1132 
(a); VC ff 142-44. This is "a Hobson's choice — an illusory choice where the only 
realistically possible course of action trenches on an adherenťs sincerely held religious 
belief." Abdulhaseeb, 600 F.3d at 1615. 

The Supreme Court has invalidated indirect pressure on religious exercise that was 
less weighty than the direct and severe pressure imposed by the mandáte. See, e.g., 
Sherbert, 31 '4 U.S. at 404 (potential loss of unemployment benefits for refusing to work 
on Sabbath placed "unmistakable" pressure on plaintiff to abandon that observance); 
Yoder, 406 U.S. at 208, 218 (five dollar fine on plaintiffs' religious practice was "not 
only severe, but inescapable"). Fining someone for exercising his faith is the paradigm 
example of a substantial burden. See, e.g., Sherbert, 374 U.S. at 403-04 (explaining that 
forcing choice between plaintiffs faith and unemployment benefits "puts the same kind 
of burden upon the free exercise of religion as would a fine imposed against [plaintiff] for 
her Saturday worship"). 

3. The mandáte cannot satisfy strict scrutiny. 

Consequently, Defendants must "'demonstrate[] that application of the burden to 

[Plaintiffs]' represents the least restrictive means of advancing a compelling interest." 
Gonzales, 546 U.S. at 423 (quoting 42 U.S.C. § 2000bb-l(b)); Hardman, 297 F.3d at 
1126. If a less restrictive alternativě would serve Defendants' purpose, "the legislature 

10 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 18 of 31 



must use that alternativě." United States v. Playboy Enťmt Group, Inc., 529 U.S. 803, 
813 (2000) (emphasis added). RFRA imposes "the most demanding test known to 
constitutional law." City of Boerne v. Flores, 521 U.S. 507, 534 (1997). Defendants 
cannot meet it. 

a. The mandáte furthers no compelling interest because the government 
has issued numerous exemptions and because contraception is already 
widely available . 

To demonstrate a compelling interest, Defendants must show the mandáte furthers 
interests "of the highest order." Church ofthe Lukumi Babalu Aye v. City ofHialeah, 508 
U.S. 520, 546 (1993); Hardman, 297 F.3d at 1127. This determination "is not to be made 
in the abstract" but rather "in the circumstances of this case" by examining how the 
interest is "addressed by the law at issue." Cal. Democratic Party v. Jones, 530 U.S. 567, 
584 (2000); see also Lukumi, 508 U.S. at 546 (rejecting City's assertion that protecting 
public health was compelling "in the context of the ordinances at issue). "Only the 
gravest abuses, endangering paramount interests, give occasion for permissible 
limitation" of religious exercise. Thomas v. Collins, 323 U.S. 516, 530 (1945); Hardman, 
297 F.3d at 1127. Further, Defendants "must demonstrate that the recited harms are real, 
not merely conjectural, and that the regulation will in fact alleviate these harms in a direct 
and materiál way." Turner Broad. Sys. Inc. v. FCC, 512 U.S. 624, 664 (1994). 

The mandáte aims to increase access to contraceptives, a measure Defendants believe 
will promote women's health and equality. 77 Fed. Reg. 8725, 8727-28 (Feb. 15, 2012). 
However weighty that interest is in the abstract, Defendants cannot demonstrate that it is 
"compelling" in the context of the mandáte. An interest cannot be "compelling" where 

11 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 19 of 31 



the government "fails to enact feasible measures to restrict other conduct producing 
substantial harm or alleged harm of the same sort." Lukumi, 508 U.S. at 546-47; Friday, 
525 F.3d at 958. The mandáte provides a textbook example of such a failure. 

Defendants have chosen not to mandáte contraceptive coverage in millions of 
policies. Over 100 million "grandfathered" plans are not required to comply with the 
mandáte; nor are "small employers" who employ over 20 million people. See Newland, 
slip op. at 13-14 (citing 42 U.S.C. § 18011; 26 U.S.C. § 4980H(c)(2)). 7 Churches and 
religious orders are exempt. 77 Fed. Reg. 8725, 8726 (Feb. 15, 2012). Certain religious 
groups who object to insurance and members of "health care sharing ministries" are 
exempt from the Affordable Care Act altogether and therefore need not cover 
contraceptives. 26 U.S.C. § 5000A(d)(2)(A), (B), (ii). The "safe harbor" gives certain 
non-exempt religious non-profits an additional year before the mandáte will be enforced 
against them, and the government recently expanded the safe harbor to include additional 
non-profits. VC ffl 125-26 & n.2. This wide-ranging scheme of exemptions, as Judge 
Kane correctly found, "completely undermines any compelling interest in applying the 
preventivě care coverage mandáte to Plaintiffs." Newland, slip op. at 15. 

The Supreme Courťs decision in Gonzales compels this conclusion. In that RFRA 

case, the government claimed a compelling interest in uniformly applying federal 

See also Keeping the Health Pian You Have: The Affordable Care Act and 
"Grandfathered" Health Plans, available at http://www.healthcare.gov/news 
/factsheets/2010/06/keeping-the-health-plan-you-have-grandfathered.html) (last visited 
Sept. 9, 2012); http://www.census.gov/econ/smallbus.html (last visited Sept. 9, 2012). 
HHS has predicted that a majority of large employers, employing more than 50 million 
Americans, will continue to use grandfathered plans through at least 2014, and that a 
third of small employers with between 50 and 100 employees may do likewise. Id. 



12 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 20 of 31 



narcotics laws and protecting public health justified refusing to exempt a church's 
religious use of a dangerous narcotic Qioasca, which the church used in a tea). The Court 
unanimously rejected the argument, because the narcotics laws themselves authorized 
exemptions and the government had already granted one for a different hallucinogen 
(peyote) used by a larger religious group (Native Americans). Gonazles, 546 U.S. at 432- 
35. The Court thus held that "the Government failed to demonstrate, at the preliminary 
injunction stage, a compelling interest in barring the [church' s] sacramental use 
of hoasca." Id. at 439. 

In light of Gonzales, Defendants' alleged interests in increased contraceptive access 
and promoting health cannot qualify as "compelling" where they have deliberately 
chosen not to mandáte contraceptive coverage in over 100 million insurance policies. 
Gonzales found that one exemption to the narcotics laws for a different drug undermined 
the government' s "compelling" interest in uniformity and health. Here, Defendants have 
crafted numerous exemptions, applicable to various secular and religious organizations, 
for the same drugs. Moreover, as in Gonazles, several of those exemptions (i.e., the 
"religious employer" exemption from the mandáte, and the other religious exemptions 
from the Affordable Care Act) were granted to relieve the same burden Plaintiffs claim. 
In light of the exemptions already recognized, "RFRA makes clear that it is the obligation 
of the courts to consider whether exceptions are required" for those like Plaintiffs, whose 
faith is burdened by the mandáte in a manner just as severe as the millions of persons 
who have already been exempted. Gonzales, 546 U.S. at 434. 



13 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 21 of 31 



A related reason why Defendants' asserted interest cannot be compelling assert is that 
the problém Defendants target is minuscule. Defendants cannot legitimately assert there 
is a grave, widespread crisis of access to contraceptives justifying their coercive mandáte, 
because they have confirmed publicly that the mandated drugs are already widely 
available. In a January 20, 2012 press release, Defendant Sebelius explained that: 

• "[B]irth control . . . is the most commonly taken drug in America by young and 
middle-aged women"; 

• "[CJontraceptive services are available at sites such as community health 
centers, public clinics, and hospitals with income-based support"; 

• "[L]aws in a majority of states... already require contraception coverage in 
health plans[.]" 

Statement by U.S. Department of Health and Human Services Secretary Kathleen 
Sebelius, available at http://www.hhs.gov/news/press/2012pres/01/20120120a.html (last 
visited Sept. 9, 2012). Defendants therefore cannot credibly claim an interest "of the 
highest order" in marginally increasing access to contraceptives — much less in doing so 
by conscripting Plaintiffs' participation against their own faith. See Brown v. Entm't 
Merck Ass'n, 131 S. Ct. 2729, 2741 n.9 (2011) (noting that "the government does not 
have a compelling interest in each marginal percentage point by which its goals are 
advanced"). 

Judge Kane's conclusion in Newland is therefore inescapable: "The government has 
exempted over 190 million health pian participants and beneficiaries from the preventivě 
care coverage mandáte; this massive exemption completely undermines any compelling 
interest in applying the ... mandáte to Plaintiffs." Slip op. at 14-15. 



14 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 22 of 31 

b. Defendants already have numerous less restrictive means of furthering 
their interest. 

Even assuming a compelling interest, the mandáte still fails strict scrutiny because 
there are other readily-available means of enhancing contraception coverage that are far 
less burdensome to Plaintiffs' rights. See, e.g., Hardman, 297 F.3d at 1130 (explaining 
that, under strict scrutiny, government must "demonstrate that no alternativě forms of 
regulation would combat such abuses without infringing First Amendment rights") 
(quoting Sherbert, 374 U.S. at 407) (emphasis in originál). Defendants must employ 
feasible less restrictive alternatives, instead of burdening religious objectors. See, e.g., 
Playboy Enťmt Group, 529 U.S. at 813 (explaining that, if a less restrictive alternativě 
would serve the government' s purpose, "the legislature must use that alternativě"). 
Further, the government must adduce specific evidence that its chosen means is the least 
restrictive option — "[m]ere speculation is not enough to carry this burden." Hardman, 
297 F.3d at 1130. 

Defendants have a host of readily available alternatives for expanding contraceptive 
access that would avoid any need to conscript religious objectors. Defendants could: 

• Directly provide the drugs at issue, or directly provide insurance coverage 
for them. 

• Allay the costs of the drugs through subsidies, reimbursements, tax credits 
or tax deductions. 

• Empower willing actors — for instance, physicians, pharmaceutical 
companies, or the interest groups who champion free access — to deliver the 
drugs themselves and to sponsor education about them. 

• Use their own considerable resources to inform the public that these drugs 
are available in a wide array of publicly-funded venues. 



15 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 23 of 31 



This array of alternatives is real, not hypothetical. On its own website, Defendant HHS 
announces that it plans to spend over $300 million in 2012 to pro vide contraceptives 
directly through Title X funding. 8 Moreover, the federal government, in partnership with 
statě governments, has constructed an extensive funding network designed to increase 
contraceptive access, education, and use, including: 

• $2.37 billion in public outlays for family planning in fiscal year 2010. 

• $228 million in fiscal year 2010 for Title X of the Public Health Service 
Act, the only federal program devoted specifically to supporting family 
planning services. 

• $294 million in statě spending for family planning in fiscal year 2010. 9 

The same report notes that public funding for family planning increased 31% from fiscal 

year 1980 to fiscal year 2010. Id. Nothing prevents Defendants from using such pre- 

existing sources to further their interest in increasing women's access to contraceptives. 

As Judge Kane aptly concluded in Newlanď. 

Defendants have failed to adduce facts establishing that government 
provision of contraceptive services will necessarily entail logistical and 
administrativě obstacles defeating the ultimate purpose of providing no-cost 
preventivě health care coverage to women. Once again, the current 
existence of analogous programs heavily weighs against such an argument. 



See Department of Health and Human Services, Office of the Assistant Secretary 
of Health, Office of Population Affairs, Announcement of Anticipated Availability of 
Funds for Family Planning Services Grants, available at 
https://www.grantsolutions.gov/gs/preaward/previewPublicAnnouncement.do?id=12978 
(last visited Sept. 10, 2012) (announcing that "[t]he Presidenťs Budget for Fiscal Year 
(FY) 2012 requests approximately $327 million for the Title X Family Planning 
Program"). 

Facts on Publicly Funded Contraceptive Services in the United States 
(Guttmacher Inst. May 2012) (citations omitted), available at 
http://www.guttmacher.org/pubs/fb_contraceptive_serv.html (last visited Sept. 10, 
2012). 



16 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 24 of 31 



Newland, slip op. at 17. Using those already-existing public programs would further 
Defendants' goals without coercing Plaintiffs to violate their faith. 

Moreover, there is no indication that Defendants even considered using these kinds of 
alternatives, which automatically violates the least restrictive means requirement. See, 
e.g., Grutter v. Bollinger, 539 U.S. 306, 339 (2003) (narrow tailoring requires "serious, 
good faith consideration of workable... alternatives that will achieve" the stated goal). If 
Defendants cannot show they even investigated less restrictive alternatives — especially in 
light of the fact that numerous public comments alerted them to religious employers' 
objections to the mandáte — their rule cannot survive strict scrutiny. 

In sum, Plaintiffs are likely to prevail on their claim that the mandáte violates the 
Religious Freedom Restoration Act. 

B. The mandáte violates the Free Exercise Clause. 

In addition to violating RFRA, the mandáte also violates the Free Exercise Clause 
because it is not "neutral and generally applicable." Lukumi, 508 U.S. 20 at 545 (citing 
Employment Division v. Smith, 494 U.S. 4572, 880 (1990)). The mandáte is therefore 
subject to strict scrutiny which, for the reasons discussed above, it cannot meet. See 
Lukumi, 508 U.S. at 546 (explaining that such laws "undergo the most rigorous of 
scrutiny"). 10 



Neutrality and generál applicability overlap and "failure to satisfy one requirement 
is a likely indication that the other has not been satisfied." Lukumi, 508 U.S. at 531. 



17 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 25 of 31 



1. The mandáte is not neutral because it exempts some religious employers 
while compelling others. 

The mandáte fails neutrality at the most basic level by explicitly discriminating 
among organizations on a religious basis. See, e.g., Lukumi, 508 U.S. at 533 (explaining 
that "the minimum requirement of neutrality is that a law not discriminate on its face"). 
On its face, the religious employer exemption divides religious objectors into favored and 
disfavored classes, forgetting Lukumťs warning that "[a] law lacks facial neutrality if it 
refers to a religious practice without a secular meaning discernible from the language or 
context." Lukumi, 508 U.S. at 533 (emphasis added). 

That religious employer exemption protects only certain religious bodies, which it 
defines by reference to their internal religious characteristics. Námely, it exempts only 
organizations whose "purpose" is to inculcate religious values; who "primarily" employ 
and serve co-religionists; and who qualify as churches or religious orders under the tax 
code. 45 C.F.R. § 147.130(a)(iv)(B)(l)-(4). This openly does what Lukumi says a neutral 
law cannot do: refer to religious qualities without any discernible secular reason. Lukumi, 
508 U.S. at 533. There is no conceivable secular purpose, for instance, in limiting 
conscience protection to religious groups that "primarily serve" co-religionists while 
denying it to those (like Plaintiffs) who serve persons regardless of their faith. Whatever 
motivated these criteria, they practice religious "discriminat[ion] on [their] face" and 
therefore trigger strict scrutiny. Lukumi, 508 U.S. at 533. 



18 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 26 of 31 



2. The mandáte is not generally applicable due to its numerous exemptions. 
The mandáte also fails the related requirement of generál applicability. A law is not 

generally applicable if it regulates religiously-motivated conduct, yet leaves unregulated 

similar secular conduct. See, e.g., Lukumi, 508 U.S. at 544-45 (finding animal cruelty and 

health ordinances not generally applicable because they failed "to prohibit nonreligious 

conduct that endanger[ed] these interests in a similar or greater degree" — such as animal 

hunting, euthanasia, and medical testing). Such inconsistency suggests that "society is 

prepared to impose [the law] upon [religious adherents] but not upon itself," which is the 

"precise evil ... the requirement of generál applicability is designed to prevent." Id. at 

545. Because they fail to impose "across-the-board" treatment of regulated conduct, 

Smith, 494 U.S. at 884, such laws are subject to strict scrutiny. 

Under those standards, the mandáte is not generally applicable. While the purpose of 

the mandáte is to increase access to all FDA-approved contraceptives, well over 100 

million organizations and plans are categorically exempted from providing the mandated 

preventivě services. See supra Part I.A.3.a (describing exemptions for grandfathered 

plans, small employers, and certain religious groups). Thus, Defendants deliberately 

chose not to pursue their goal of increased contraceptive access with respect to a broad 

array of plans and individuals, while at the same time pursuing it against non-exempt 

religious objectors like Plaintiffs. See Newland, slip op. at 13-14 (finding Defendants' 

uniformity argument "undermined by the existence of numerous exemptions to the 

preventivě care coverage mandáte"). This is the classic case of a law that fails the basic 

requirement of generál applicability. 



19 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 27 of 31 



* * * 

Because the mandáte cannot qualify as a neutral and generally applicable law under 
the Free Exercise Clause, Defendants must clear the high bar of strict scrutiny to justify 
their decision not to exempt other religious objectors, like Plaintiffs, from the mandáte. 
As discussed above, they cannot do so. See supra Part I.A.3. Consequently, Plaintiffs are 
likely to prevail on their claim under the Free Exercise Clause. 
II. Plaintiffs will suffer irreparable harm in the absence of 

PRELIMINARY RELIÉF. 

It is settled that a potential violation of Plaintiffs' rights under the First Amendment 

and RFRA threatens irreparable harm. See, e.g, Kikumura v. Hurley, 242 F.3d 950, 963 
(lOth Cir. 2001) (noting that "courts have held that a plaintiff satisfies the irreparable 
harm analysis by alleging a violation of RFRA"); Newland, slip op. at 8 (noting "it is 
well-established that the potential violation of Plaintiffs' constitutional and RFRA rights 
threatens irreparable harm") (citation omitted); see also Elrod v. Burns, 427 U.S. 347, 
373 (1976) ("The loss of First Amendment freedoms, for even minimal periods of time, 
unquestionably constitutes irreparable injury"). 

These harms will fall on Plaintiffs imminently. "Plaintiffs need only demonstrate that 
absent a preliminary injunction, '[they] are likely to suffer irreparable harm before a 
decision on the merits can be rendered.'" Newland, slip. op. at 8 (quoting Winter v. Nat. 
Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). Plaintiffs do not qualify for the one-year 
safe harbor and therefore face the certain prospect of violating the mandáte in less than 
five months' time — by January 1, 2013 — and incurring steep penalties. And, as explained 



20 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 28 of 31 



above, the disruptions occasioned by this impending deadline are occurring now, as 
Plaintiffs arrange their 2013 policies. See, e.g., Newland, slip op. at 8-9 (reasoning that 
"[i]n light of the extensive planning involved in preparing and providing its employee 
insurance pian, and the uncertainty that this matter will be resolved before the coverage 
effective date, Plaintiffs have adequately established that they will suffer imminent 
irreparable harm absent injunctive reliéf')- This factor therefore strongly weighs in favor 
of preliminary injunctive reliéf. 

III. The balance of equities tips in Plaintiffs' favor. 

Granting preliminary injunctive reliéf will merely prevent Defendants from enforcing 

the mandáte against the named Plaintiffs. This will preserve the status quo between the 
parties, counseling in favor of granting preliminary reliéf. See Newland, slip op. at 6-7 
(applying normál standard because the injunction would preserve the status quo). 
Defendants have already exempted a number of churches and church-related entities from 
the mandáte, delayed enforcement of the mandáte against many religious organizations 
until August 2013, and given many non-religious employers an open-ended exemption in 
the form of grandfathering. Preventing Defendants from enforcing the mandáte against 
Plaintiffs would therefore not "substantially injure" Defendants' interests. Balanced 
against any de minimis injury to Defendants is the real and immediate threat to Plaintiffs' 
religious liberty. Moreover, Plaintiffs face the imminent prospect of severe fines for 
dropping employee insurance, which would gravely impact employees and their families. 



21 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 29 of 31 



In sum, any minimal harm to Defendants in temporarily not enforcing the mandáte 
"pales in comparison to the possible infringement upon Plaintiffs' constitutional and 
statutory rights." Newland, slip op. at 9. 

IV. An injunction is in the public interest. 

Finally, a preliminary injunction will serve the public interest by protecting Plaintiffs' 

First Amendment and RFRA rights. The public has no interest in enforcing a regulation 
against religious business owners that coerces them to violate their own faith. See, e.g., 
Newland, slip op. at 9-10 (finding '"there is a strong public interest in the free exercise of 
religion even where that interest may conflict with [another statutory scheme]'") (quoting 
O Centro, 389 F.3d at 1010); see also, e.g., Pac. Frontier v. Pleasant Grove City, 414 
F.3d 1221, 1237 (lOth Cir. 2005) ("Vindicating First Amendment freedoms is clearly in 
the public interest."). Furthermore, any interest of Defendants in uniform application of 
the mandáte "is ... undermined by the creation of exemptions for certain religious 
organizations and employers with grandfathered health insurance plans and a temporary 
enforcement safe harbor for non-profit organizations." Newland, slip op. at 9. 

CONCLUSION 

Plaintiffs respectfully ask the Court to enter a preliminary injunction against 
Defendants in accordance with the reliéf sought in Plaintiffs' Complaint. 



22 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 30 of 31 



Respectfully submitted this 12th day of September, 2012. 

/s/ Charles E. Geister III 

Charles E. Geister III, OBA No. 3311 
Derek B. Ensminger, OBA No. 22559 
Hartzog, Conger, Cason & Neville 
1600 Bank of Oklahoma Plaza 
201 Robert S. Kerr Avenue 
Oklahoma City, OK 73102 
Telephone: (405) 235-7000 
Facsimile: (405) 996-3403 
cgeister@hartzoglaw.com 
densminger@hartzoglaw.com 

- And- 

S. Kýle Duncan, LA Bar No. 25038 

(Motionfor Pro Hac Vice pending) 

Eric S. Baxter, D.C. Bar No. 479221 

(Motionfor Pro Hac Vice pending) 

Lori Halstead Windham, D.C. Bar No. 501838 

(Motionfor Pro Hac Vice pending) 

The Becket Fund for Religious Liberty 

3000 K Street, N.W., Suitě 220 

Washington, D.C. 20007 

Telephone: (202) 955-0095 

Facsimile: (202) 955-0090 

kduncan @ becketf und . org 

ATTORNEYS FOR PLAINTIFFS 



23 



Case 5:12-cv-01000-HE Document 6 Filed 09/12/12 Page 31 of 31 



CERTIFICATE OF SERVICE 

I hereby certify that the foregoing document was filed through the Courťs ECF 
filing systém on September 12, 2012, and that a copy was served via first-class mail, 
postage prepaid, on the following: 



Eric Holder 

United States Attorney General 
950 Pennsylvania Ave. NW 
Washington, DC 20530 

/s/ Charles E. Geister III 
Charles E. Geister III 



24 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 1 of 18 
Case l:12-cv-01123OLK Document 30 F Hed 07/27/12 USDC Colorado Pagelofl8 



IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLORADO 
Judge John L. Kane 

Civil Action No. 1 : 12-cv-l 123-JLK 

W1LLTAM NEWLAND; 
PAUL NEWLAND; 
JAMES NEWLAND; 
CHRISTINE KETTERHAGEN; 
ANDREW NEWLAND; and 

HERCULES INDUSTRIES, INC., a Colorado Corporation; 
Plaintiffs, 

v. 

KATHLEEN SEBELIUS, in her officiat capacity as Secretary of the United States Department 
of Health and Human Services; 

HILDA SOLIS, In her offícial capacity as Secretary of the United States Department of Labor; 
TIMOTHY GEITHNER, in his offícial capacity as Secretary of the United States Department 
of the Treasnry; 

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES; 
UNITED STATES DEPARTMENT OF LABOR; 
UNITED STATED DEPARTMENT OF THE TREASURY; 

Defendants, 



ORDER 



Kane, J, 

This matter is currently before me on Plaintiffs 1 Motlon for Preliminary Injunctton (doc. 
5). Based on the fortheoming discusslon, Plaintiffs' motion is GRANTED, 

BACKGROUND 
The Patietrt Proteciion and Affordable Care Act 
Signed tuto law on March 23, 2010, the Patient Protection and Affordable Care Act 
("ACA"). Pub. L. No. 1 1 1-148, 124 Stat. 119 (2010), instituted a variety of heaithcarc reforms. 

I 



EXHIBIT 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 2 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 2 of 18 



Among its many provisions, it requíres most U.S. cilizens and legal residents to háve heaith 
insurance, creates state-based health Insurance exchanges, and requíres employers wlth fifty or 
more full-time employees lo offer health insurance. 1 Id. The ACA also implemented a series of 
provisions aimed at insuring minimum levels of health care coverage. 2 Most relevant to íhe 
instant suit, the ACA requíres group heaith plans to provide no-cost coverage for preventivě care 
and screenlng for women, 42 U.S.C. § 300gg-13(a)(4), 3 

Unlikc some otlier provisions of the ACA, however, the preventivě care coverage 
mandáte does not apply to certain heallhcare plans existing on March 23, 201 0, 4 See Interim 



1 In a recent deoision, the Supreme Court upheld the constitutionality of tlie so-called 
individua! mandáte, but invalidated the portion of the Affordable Care Act threatening loss of 
existing Medicaid funding if a statě declines to expand its Medicaid programs, Naťf Feďn of 
Indep. Bus. v. Sebetitts, _ U.S. _; i 83 L. Bd. 2d 450 (June 28, 2012), 

2 Termed the "Patienťs Bili ofRights" these provisions require heaith ptans to: provide 
coverage to persons with pre-existing conditions, protéct a patienťs choicc of doctors, allow 
adults under theage of twenty-six to maintain coverage under their parenťs heaith pian, prohibit 
annual and fifetime lim its on most healthcare benefits, and end pre-existing condition exclusions 
for children under the age of nineteen. See Patienťs Bili ofRights avaihibfe at 
http:/Av\vw.healthcare.gov/ía\v/features/rights/bill-of-rights/index,html (íast viewed on July 27, 
2012), As discussed infra at n,4, not all health plans are required to meet these conditions, 

3 The ACA did not, howcver, specifically delimit the contours of preventivě care, 
rnsteacl, it delegated that responsibility to the Health Resources and Services Administration 
("HRSA"), On August 1, 201 1, HRSA ndopted Required Health Pian Coverage Guideiines that 
defined the scope of womerťs preventivě services for purposes of the ACA coverage mandáte, 
See HRSA, Wometťs Preventivě Services: Required Health Pian Coverage Guidetines available 
at http://www.hrsa.gov/womensguideiines/ (last vlsited July 27, 2012). The HRSA guideiines 
inclnde, among other things, "the full range of Food and Drug Adminístration-approved 
contraceptive methods, sterilization procedures, and patient education and counseling for women 
with reproductive capacity," Id. 

4 Numerous provisions of the ACA apply to grand fathered health plans: the prohibition 
on pre-existing condition exclusions (group health plans only), the prohibition on excessive 
waiting periods (both group and individua! health plans), the prohibition on lifetime (both) and 
annual (group only) benefit limits, the prohibition on rescissions (both), and íhe extcnsion of 
dependent care coverage (both) to name a few, 75 Fed. Reg, at 34542, For a comprehensive 



2 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 3 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 3 of 18 



Finat Rules for Group Health Plans and Health Insurance Coverage Relating to Status as a 
Grandfathered Health Pian Under the Patient Protection aiid Affoidable Care Act, 75 Fed. Reg. 
34538,34540 (June 17, 2010). This gap in the preventivě care coverage mandáte is signifícant. 
According to government estimates, 191 mlllíon Americans beiong to pians which may be 
grandfathered under the ACA. Id at 34550, Although there are many requirements for 
maintaining grandfathered status, see 26 C.F.R. § 54,9815-125 lT(g), if those requirements are 
met a pian may be grandfathered for an indefinite period of time. 

In addittoii to grandfathering under the ACA, the preventivě care guidelines exempt 
certain religious employers from any requirement to cover contraceptive services, 5 See Jnterim 
Fitial Rules for Group Health Plans and Health Insurance Issuers Relating to Coverage of 
Preventivě Services Under the Patietit Protection and Affoidable Care Act, 76 Fed, Reg. 46621 
(Aug. 3, 201 1). The guidelines also contain a temporary enforcement "safe-harbor" for plans 
sponsored by certain non-profit organizations with religious objections to contraceptive coverage 



summaiy of the appiicability of ACA provisions to grandfathered health plans, see Application 
of the New Health Reform Provisions of Part A of Title XXVII of the PHS Act to Grandfathered 
Plans, avallable at littp:/Avww,doi,gov/ebsa/pdf/grandfatheiregtable,pdf, (last visited Juiy 26, 
2012). 

í In order to qualify as a "religious employer" eíigible for this exemption, an employer 
must mect the following eriteria: 

(1) The inculcation of religious vahtes is the purpose of the organízation, 

(2) The organízation prímaríly emptoys persons who share the religious 
tenets of the organízation, 

(3) The organízation serveš primarily persons who share the religious 
tenets of the organízation. 

(4) The organízation is a non-profít organízation as deseríbed in section 
6033(a)(l) and section 6033(a)(3)(A)(i) or (iii) of the Interna! Revenue Code of 
1986, as amended. 

76 Fed, Reg. 46621, 46626 (Aug, 3, 201 1); See 77 Fed. Reg. 8725 (Feb, 15, 2012). 



3 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 4 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 4 of 18 



that do not qualify for the religious employer exemption, See Finál Rules for Group Health 
Plans and Health Insurance Issuers Relating to Coverage of Preventivě Services Undeithe 
Patient Protectlon and Affordable Care Act 77 Fed. Reg. 8725, 8726-8727 (Feb, 15, 2012). The 
preventivě care guidelines take effcct on August í, 2012, 

Hercules Industries, lne, 

Plaintiff Hercules Industries, Inc. is a Colorado s-corp engaged in the manufacture and 
distribution of heating, ventilation, and aircondítioning ("HVAC") products and cquipnient. 
Hercules is owned by slblings Wiliiam, Paul and James Newland and Chrístine Ketterhagen, 
who aiso comprise the company's Board of Directors. Additionally, Wiliiam Newland serveš as 
President of the company and his son, Andrew Newland serveš as Vice President, 6 

Although Hercules is a for-profit, secu far employer, the Newlands adhere to Ihe Catholic 
denomination of the Christian faith, Accorditig to tiie Newlands, "they seek lo run Hercules in a 
ínanner that reflecls their sincerely held religious beliefs" Amended Complaint (doc. 19) at % 2. 
Thus, for the past year and a half the Newlands have implemented wíthin Hercules a program 
designed to build their corporate culture based on Catholic principies, Id. at % 36. Hercuies 
recently made two amendments to its aiticles of incorporation, which reflect the role of religion 
in its corporate governance: (1) it added a provision speeifyitig that its primary purposes are to 
be achieved by "following appropríate religious, ethical or mora! standards," and (2) tt added a 
provision allowing members of ils board of directors to prioritize lhose "religious, ethical or 
moral standards" at the expense of profttabiiity, Id. at ^ 1 12, Furthertnore, Hercules iias donated 



6 Throughout this opinion, I will refer to Wiliiam Newland, Paul Newland, James 
Newland, Chrístine Ketterhagen, and Andrew Newland as the "Newlands." 

4 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 5 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 5 of 18 



signifícant amounts of money to Catholie organizations and causes, Id, at U 35. 

Accordingto Plaintiffs, Hercules maintains a self-insnred groitp pian for its employees 
"[a]s pact of fulfillitig their organ izational mission and Caiholic beliefs and commitments," Id. at 
ffij 37. Sigtiificantly, because the Catholie church condemns Ihe use of contraception, Hercules 
self-insnred pian does not cover abortifacent drugs, contraception, or sterilization. Id. at ^ 41 . 

Hercules* health insurance pian is not "grand fathered" under the ACA. Fmthermore, 
notwlthstanding theNewlands' religious belíefs, as a secular, for-profit corporatioti, Hercules 
does not qualify as a "religious empioyer" within the meaning of the preventivě care regulations. 
Nor may it seek refiige in the cnforceinent "safe harbor." Accordingly, Hercules will be required 
to eitiier include no-cost coverage for contraception in its group health pian or face monctary 
penalties, Faced with a choice between complying with the ACA or complying with their 
religious beliefs, Plaintiffs filed the instant suit cliallenging the women's preventivě care 
coverage mandáte as violative of RFRA, the First Amendment, the Fiflh Amendment, and the 
Administrativě Proceduře Act 

Believing the alleged injury to their constitutional and statutory rights to be imminent, 
Plaintiffs filed the instant Motion for Preliminary Injunction, 

DISCUSSfON 

A preliminary injunction is an extraordinary remedy; accordingly, the right to reliéf imist 
be clear and uneqilivoca!. See, e.g^Floodv. ClearOm Cominc'm, Inc., 618 F.3d 1 1 10, 1 1 17 
(lOth Cir. 2010). To meet this burden, a party seekhig a preliminary injunction must show; (i) a 
likelihood of success on fhe merits, (2) a threatof irreparable harm, which (3) ouhveighs any 
harm to the non-moving party, and that (4) the injunction would not adversely affect the public 



5 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 6 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 US DC Colorado Page 6 of 18 



interest, See, e.g., Awadv. Zlriax, 670 P.3d 1 1 1 1, 1125 (10th Cir. 2012). Although this inquiry 
is, on its face, relatively straightfoi ward, there are a variety of exceptions. If the injunction will 
(1) alter the status quo, (2) mandáte action by the defendant, or (3) afford the movant ali the 
reliéf that it could recover at the conclusion of n fiill trial on the inerits, the movant must meet a 
heightened burden, See O Centro Espirita Beneficente Uniao do Vegelal v. Ashcroft, 389 F,3d 
973, 975 (lOlh Cir, 2004) (en banc), aff d and remanded, Gomates v. O Centro Espirila 
Beneficente Uniao do Vegelal, 546 U.S. 418 (2006). 

ín determining whether an injunction falls ínto oneof these "disfavored" categories, 
courts often focus on whether the requested injunctive reíief will alter the status quo, The "status 
quo" is "the íast uncontested status betweeti the parties which preceded the controversy until the 
outcome of the finál hearing." Dominion Video Satellite, Inc. v, Echostar Satellite Corp., 269 
F,3d 1 149, 1 1 55 (lOth Cir. 2001), In making this determínation, however, I must look beyond 
the parties' legal rights, focusing instead on the reality of the existing status and relatíonship 
between the parties. Schrierv. Univ. o/Colo., 427 F,3d 1253, 1260 (lOth Cir. 2005). I T the 
requested reliéf would eiťher preserve or restore the relatíonship and status existing ante bellům, 
the injunction does not alter the status quo. 

This determínation is not, however, necessarlly dispositive. An injunction restoríng the 
status quo ante betlům may require action on behalf ofthe nonmovant. Such an injunction, one 
which "affirmatively require[s] the nonmovant to act in a particular way," is mandatory and 
disfavored. Id. at 1261, 

Although I folíow the Tenth Circuiťs guidance in determining whether Plaintiffs seek to 
disturb the status quo or require affirmative action by Defendants, I am careful to avoid 



6 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 7 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 7 of 18 



uncritical adherence to the "status quo-formula" and the "mandatory/prohibitory formulation." 
In making this determinatíon, I must be mindfui of "the fundamental purpose of preliminary 
injimctive reliéf under our Ruíes of Civil Proceduře, which is 'to preserve the relative positions 
of the parties untit a trial on the merits can be held,'" Broy v. QFA Royalties, LLC> 486 F. Supp. 
2d 1237, 1243-44 (D. Colo, 2007) (eiting O Centro, 389 P.3d at 999-1001 (Seymour, C.J., 
concurring)). 

Before the instigation of this iawsuit, Plaintiffs maintained au employee Insurance pian 
that excluded contraceptive coverage. Although Defendants have passed a regulation requiring 
Plaintiffs to include such coverage in their coverage for the plan-year beginning on November 1, 
2012, that regulation, as it applies to Plaintiffs, has not yet taken effect, Should the requested 
injunction enter, Defendants will be cnjoined from enforcing the preventivě care coverage 
mandáte against Plaintiffs pending the outcome of this suit, The status quo will be preserved, 
and Defendants wili not be required to take any affirmaíive action, 

Because Plaintiffs do not seek a "disfavored" injunction, I must consider whether 
Plaintiffs are entitled to rely on an altered burden of proof. Cf, O Centro, 389 F.3d at 976. If the 
equities tip strongly in their favor, Plaintiffs "may meet the requirement for showing success on 
the merits by showing that questions golng to the merits are so serions, substantial, diffícult, and 
doubtful as to make tho issue ripe for litigation and deserving of more deliberate investigation," 7 

7 Although some courts in this district have questioned the contimied validity of this 
relaxed likelihood-of-success-on-the-merits standard in light of the Supreme Couiťs decision in 
Winter v, Nalural Resource Defense Cotwcil, Inc., 555 U.S. 7, 20 (2008) (holding that a plaintiff 
seeking a preliminary injunction "must estabtish that he is likely to succeed on the merits"), 
because the Tenth Circuit has continued to refer to this relaxed standard 1 assume it still governs 
the issuance of preliminary injunctions in thiscircuit, See RoDaDHIUng Co. v, Siegal, 552 F.3d 
1203, 1209n.3 (lOth Ciť, 2009). 

7 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 8 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 8 of 18 



Okla. ex rel. Okla. Tax Comnťn v, Inťl Registration Pian, Inc., 455 F.3d 11 07, 1 1 13 (lOth Cir. 
2006). 

Accoiclingly, T begin by consideiing the equities before turning to Plaintiffs' likelihood of 
success on the merits. 

1. Irreparabíe Harm 

Aíttiough ít is well-estabiished (hat the potentiai violation of Plaintiffs' constiiiitional and 
RPRA rights threatens irreparabíe harm, see Kikiiimtra v. Hůrky, 242 F,3d 950, 963 (lOth Cir. 
2001), Plaintiffs must also establish thafthe injury compiained of is of such imminence that 
there is a clear and prescnt need for equitable reliéf to prevent irreparabíe harm," Heideman v, S, 
Salt Lake City, 348 F.3d 1 182, 1 189 (lOth Cir. 2003) (emphasis in originál). Imminence does 
not, however, require immediacy. Plaintiffs need oniy demonstrate that absent a preliminary 
injunction, "[they] are likely to suffer irreparabíe harm before a decision on the merits can be 
rendered." Winter v. Nat. Res. De/. Council, Inc., 555 U.S. 7, 22 (2008) (quoting 1 1 A C. Wrighf, 
A. Miller, & M. Kane, Federal Practice and Proceduře § 2948.1, p. 139 (2d ed. 1995)). 

Absent injunctive reliéf, Plaintiffs will be required to províde FDA-approved 
contraeeptive inethods, steriiization procedures, and patient education and counseling for women 
with reproductive capacity as part of their einpíoyee insurance pian. Per the terms of the 
preventivě care coverage mandáte, that coverage must begin on the start date of the first pian 
year following the effective date of the reguiations, November 1, 2012. Defendants argue this 
harm, three months in the ftiture, is not suffloiently imminent to justify injunctive reliéf. In light 
of the extensive planning invotved in preparing and providing its employee insurance pian, and 



8 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 9 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 9 of 18 



the uncertainty thaí this matter will be resolved before íhe coverage efTective date, Plaintiffs 
háve adequately established thaí Ihey will suffer imminent irreparabie harm absent injunctive 
reliéf. This facto!' stiongly favors entry of injunctive reliéf. 

2. Balancing of Harms 

I nuist next weigh the irreparabie harm faced by Plaintiffs against the harm to Defendants 
should an injunction enter, Should ati injunction enter, Defendants will be prevented from 
"enforcing rcgulations that Congress foitnd it in the public interest to direct that agency to 
develop and enforce." Cornish v. Dudcts, 540 F. Supp. 2d 61, 61 (D.D.C. 2008). 

This harm pales in compai ison to the possible infringemenl upon Plaintiffs' 
constitutional and statutory rights, This factor strongly favors entry of injunctive reliéf. 

3. Public Iníerest 

Defendants argue that entry of the requested injunction is contrary to the public interest, 
because it would "undermine [thelr] ability to effectuate Congress's goals of improving the 
health of womcn and children and equalizing the coverage of preventivě services for women and 
men so that women who choose to do so can be part of the workforce on an equal playing flcíd 
with men," Defendants' Response (doc. 26) at73. This asserted interest is, however, undermined 
by the creation of exemptíons for certain religious organizations and employers with 
grandfathered health insurance plans and a teinporary enforceinent safe harbor for non-proflt 
organizations, 

These interests are countered, and indeed outweighed, by the public interest in the free 
exercise of religion. As the Tenth Circuit has noted, "there is a strong public interest in the free 

9 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 10 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 10 of 18 



exerclse of religion even where that interest may confiict with [another statutory scheme]," O 
Centro, 389 F,3d at 10 i 0. Accordingly, the public interest favors entry of an injunction in this 
case. 

On balance, the threatened harm to Plainíiffs, impingement of their right to freely 
exercise their rcligious beliefs, and the concoinmittant public interest In that right srongly favor 
the entry of injunctive reliéf. Allhough the less rigoious standard for preliminary injunctions is 
not applied when "a preliminaiy injunction seeks to stay governmental actton taken in the public 
interest pursuant to a statutory or regulátory sahomo" Aicffoť Woimn v, Foulsfoti, 441 F,3d 
1 101, 1115 (lOth Cir, 2006), the governmenťs creation of numerous exceptions to the preventivě 
care coverage mandáte has undermined its aiieged public interest, 8 Accordingiy, I find the 
generál ruíedisfavoring the relaxed standard inapplicable. Plainíiffs need only estabiish that 
their challenge prescnts "questions going to the mertts . . . so serious, subsiantial, difficult, and 
doubtful as to make the issue ripe for litigation nnd deserving of more deliberate investigation." 
Okla. Tax Comm% 455 F,3d at 1 1 13. 

4. Likelihood of Success on the Merits 

Plaintiffs raise a variety of constitutíona! and statutory chailenges. Because Plaintiffs* 
RFPvA challenge provides adequate grounds for the requested injunctive reliéf, I deeline to 
address their chailenges under the Free Exercise, Establishment and Freedom of Speech Clauses 
of the First Amendment. See, e.g., United States v. Hardeman, 297 F.3d 1 116, 1 135-36 (lOth 
Cir. 2002) (en bano). 



8 See discussion supra at pp, 2-4 and ínfra at p. 14-15. 

10 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 11 of 18 
Casel:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 11 of 18 



Passed in 1993, the Religious Freedom Restoration Act ("RPRA") sought to "reslore the 
compelling interest test as set forth in Sherbert v. Verner, 374 U.S. 398 (1963) and Wisconstn v. 
Yoder, 406 U.S. 205 (1972) and to guarantee its application in all cases where free exercise of 
religion is substantially burdened." 42 U.S.C. § 2000bb(b), Although unconstitutional as 
applíed to the states, see Cíly ofDoerm v. Flores, 521 U.S. 507 (1997), it remains constitutional 
as applied to tise federal government. See United States v. Wilgus, 638 F.3d 1274, 1279 (lOth 
Cir. 2011). 

Under RFRA, the government may not "substantially burden a person's exercise of 
religion even if the burden results from a rule of generál applicability." 42 U.S.C. § 2000bb- 
l(a), This generál prohíbition is not, however, without exception. The government may justify a 
substantiai burden on the free exercise of religion if the chalienged law: "(0 is in furtherance of 
a compelling governmental interest; and (2) is the least restrictive means of furthering that 
compelling governmental interest." Id at § 2000bb-l(b). The initial burden is borneby the 
party challenging the law, Once that party establishes that the chailenged law substantially 
burdens her free exercise of religion, the burden shifts to the government to justify that burden. 
The natureof this preliminary injunction proceeding does not alter these burdens. Gomales, 546 
U.S. at 429. Tluis, I must first consider whether Plaintiffs have demonstrated that the preventivě 
care coverage mandáte substantially burdens their free exercise of religion, If so, í must then 
consider whether the government has demonstrated that the preventivě care coverage mandáte is 
the least restrictive means to achieve a compelling interest. 

Substantiai Burden ofFree Exercise 

Plaintiffs argue that providing contraception coverage violates their sincerely held 

II 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 12 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 12 of 18 



religious beliefs. AIthough the government does not challenge the sincerity of the Newlands' 
religious beliefs, it argues that Piaintiffs have failed to demonstrate a substantial burden on their 
free exercise of religion. This argument relies upon two key premises. First, tlie government 
asserts that the burden of providing insurance coverage is borne by Hercules. Second, the 
government argues that as a for-profit, secuíar empíoyer, Hercules connot engage in au exercise 
of religion, Accordingly, the argument concludes, the preventivě care coverage mandáte cannot 
burden Hercules' free exercise of religion.' Piaintiffs counter, arguing that there exists no law 
forbidding a corporation from operát ing according to religious principies, 

These arguments pose difficult questions of first impression. Can a corporation exercise 
religion? Should a closely-heid subchapter-s corporation owtied and operated by a small group 
of individuals professing adherence to uniform religious beliefs be treated differently than a 
publicly heíd corporation owned and operated by a group of stakeholders with diverse religious 
beliefs? Is it possible to "pierce the veil" and disregard the corporate form in this context? What 
is the significance of the pass-through taxation applicabie to subchapter-s corporalions as it 
pertains to this analysis? These questions merit more deiíberate investigation, 

Bven if, upon further examination, Piaintiffs are able to demonstrate a substantial burden 
on their free exercise of religion, however, the government mayjustify its application of the 
preventivě care coverage mandáte by demonstrating that application of that mandáte to Piaintiffs 

9 Tn the alternativě, the government argues that because Piaintiffs routineiy contribute to 
olher schemes that violate the religious beliefs alleged here, the preventivě care coverage 
mandáte does not substatitiaily burden Piaintiffs' free exercise of religion, This argument 
requiies impermissíble line drawing, and T reject it out of nand. See Thomas v. Review Bd, of 
Ind. Einp 7 Sec, 450 U.S. 707, 715 (1981). 



12 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 13 of 18 
Case l:l2-cv-0H23-JLK Document 30 Filed 07/27/12 USDC Colorado Page 13 of 18 



is the ieast restrictive means of furthering a compelling interest, 

Compelling Interest 

In order to justify a substantial bmden on Plaintiffs' free exercisc of religion, the 
government must show that its application of the preventivě carecoverage mandáte to Plaintiffs 
furthers "interests of the highest order," Hardeman, 297F.3d at 1 127, It is well-settled that the 
interest asserted in this case, the promotion of public hoalth, is a compelling government interest, 
See Buchwaldv. Univ. o/N.M. Sek ofMed, 159 F.3d 487, 498 (lOth Cir. 1998), The 
government argues that the preventivě care coverage mandáte, as applied to Plaintiffs and all 
similarly situated parties, furthers this compelling interest, 

Assuming, arguendo, that application of the preventivě care coverage mandáte to 
Plaintiffs and all similarly situated parties furthers a compelling government interest, 10 that 
argument does not justify a substantial burden on Plaintiffs ' frec exercise of religion: "RFRA 
requires the Government to demonstrate that the compelling interest test is satisfied through 
application of the chailenged law to the person - the particular claimant whose sincere exercise 
of religion is being substantially burdened." Gomates, 546 U.S, at 430-3 1 , 

I do not tnean to suggest that the government may not establish a compelling interest in 
the uniform application of a particular program. To make such a showing, however, the 
government must "offer[] evidence that granting the requested religious accommodations would 
seriously compromise its abiiity to administer this program." Id, at 435. Any such argument is 



10 Plaintiffs síremiously challenge whether the preventivě care coverage mandáte 
actualiy furthers the promotion of public health. I need not address that argument to resolve the 
instant motion, and I decline to do so. 

13 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 14 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 14 of 18 



undermined by the existence of mimerous exemptions to the preventivě care coverage mandáte, 
In promulgating the preventivě care coveiage mandáte, Congress created significant exemptions 
for small employers and grandfathered health plans," 12 26 U.S.C. § 4980H(c)(2) (exempting 
from health care provision requirement employers of less than fifty full-ttme employees); 42 
U.S.C, § 1801 1 (grandfathering of existing health care plans). Even Defendants created a 
regulátory exemption to the coníraception mandáte. 76 Fed. Reg. 46621 , 46626 (Aug. 3, 20 II) 
(exempting certain religious employers from the coniraception requirement of the preventivě 
care coverage mandáte). 

"[A] law cannot be regarded as protecting an ititerest of the highest order when it leaves 
appreciable damage to that supposedly vital interest unprohibited," Church ofthe Luhoni 
BabaluAye, Inc. v. City offíialeah, 508 U.S. 520, 547 (1993); see ctíso United States v. Friday, 
525 F.3d 938, 958 (lOth Cir. 2008). The govermnent has exempted over 190 million health pian 



" The governmenťs attempt to characterize grandfathering as "phased implementation" 
is unavailing. As noted above, heafth plans may retain thelr grandfathered status indefmitely, 
Most damaging to the governmenťs alleged compelling interest, even though Congress required 
grandfathered health plans to comply with certain provisions ofthe ACA, it speciílcally 
exempted grandfathered health plans from complying with the preventivě care coverage 
mandáte. See 42 U.S.C. § 1801 l(a)(3-4) (specifying ťhose provisions of the ACA that apply to 
grandfathered health plans). 

12 The govermnent argues that because these provisions are generál ly applicable, and not 
specifically limited to the preventivě services coverage regulations, they are not exemptions 
from the preventivě care coverage mandáte. This is a distinotion without substance. By 
exempting employers from providing health care coverage, these provisions exempt those 
employers from providing preventative health care coverage to women. If the government has a 
compeiiing interest in ensiiring no-cost provision of preventative health coverage to women, that 
interest is compromised by exceptions alíowing employers to avoid providing that coverage - 
whether broadly or narrowíy crafted. 



14 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 15 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 US DC Colorado Page 15 of 18 



participants and benefíciaries froin the preventivě care coverage mandáte; 13 tliis massive 
exemption coinpleteiy xmdermines any compelling interest in applying the preventivě care 
coverage mandáte to PlaintitTs. M 

Leasi Restrictive Means 

Even if the government were abie to establisb a compelling interest in appfying lne 
preventivě care coverage mandáte to PiaintifTs, it mtist also demonsltate that there are no feasíble 
less-restrictive alternatives. Wilgus, 638 F,3d at 1289. The goveinment need not tilt at 
windmills; it need oniy refute alternatives proposed by PiaintifTs. Id. 

Plaintiffs propose one alternativě, goveniment ptovision of free birth control, that could 
be achieved by a variety of meťhods: creation of a contraception Insurance pian with free 
enrollmení, direct compensation of contraception and steriiizatíon providers, creation of a tax 
credit or deditction for contraceptive purchases, or imposition of a mandáte on the contraception 
manufacturing industry to give its items away for free. Defendants argue Plaintiffs' 
"misunderstand the nature of the Meast restrictive means 1 inquiry," Brief in Opposition (doc, 26) 
at 43, According to Defendants, this inquiry should be limited to whether Plaintiffs and other 
simUarly sttuated parties could be exempted without damagíng Defendants' compelíing interest. 



15 Even if, as is osíimatcd under the governmenťs high-end estimate, 69% of health plans 
lose their grandfathered status by the end of 2013, millions health pian participants and 
beneficlaries will contimte to be exempted from the preventivě care coverage mandáte, See 75 
Fed, Reg. 34538, 34553. 

H To the extent the goYernment argnes creating an exemption for Plaintiffs threatens to 
undermine the preventivě care coverage mandáte, that argument is ínconsistent with RFRA and 
irrelevant in this context, See Gomaíes, 546 U,S, at 436 (rejecting "slippery slope" argument as 
ínconsistent with RFRA), 

15 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 16 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 16 of 18 



If is, however, not Plaintiffs but Defendants who misunderstand the least rcstcictive 
means inquiry. Defendants need not refiite every conccivable alternativě, but they "must reftite 
the alternativě schomes offered by the challenger." tJ Wilgm, 638 F,3d at 1289. 

Despite their categoi icai argument, Defendants attempt to refute Plaintiffs' proposed 
alternativě, First, Defendants argue that because Plaintiffs' alternativě "would impose 
considerabie new costs and other burdens on the Government and are otherwise inipractical," 
they should be rejected as not "feasible" or "plausible," Brief in Opposition (doc, 26) at 44. 
Altliough a showíng of impracticality is sufficient to reftite the adequacy of a proposed 
alternativě, Defendants have failed to make such a showíng in this case. As Plaintiffs note, "the 
government already provides free contraception to women." Reply Brief in Support (doc. 27) at 
38. 

Defendants also argue Plaintiffs' alternativě would not adequately advance the 
governmenťs compelíing interests. They acknowiedge that Plaintiffs* alternativě would achieve 
the purpose of providing contiaceptive services to women with no cost sharing, but argue that 
Plaintiffs' alternativě will not "enswfe] that women wili face minimal logisťicat and 
administrativě obstacies to receiving coverage of their care." Brief in Opposition (doc. 26) at 45. 
Altliough Plaintiffs argue that this amounts to a redefínition of Defendants' compelíing interest, 



13 Furthermore, both parties impermissibiy expand thescope of this determination, As 
noted above, my inquiry Is limited to the parties before tne; I do not consider al! other "similarly 
situated parties." To the extent Plaintiffs' alternativě would apply to other parties, it is 
overinclusive. Because the parties frame tliis discussion, however, I analýze the alternativě as 
presented by Plaintiffs and responded to by Defendants. 



16 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 17 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 17 of 18 



it is instead a logical corollory thereto. 16 Nonetheless, Defendants have failed to adduce facts 
estabiíshing that government provision of contraception services will necessarily entail logistical 
and administrativě obstaeles defeating the ultímate purpose of providing no-cost preventivě 
heaith care coverage to women, Once again, the cunetit existence of anaiogous programs 
heavily weighs against such an argument. 

Defendants bear the burden of demonstrating that refusing to exempt Piaintiffs from the 
preventivě care coverage mandáte is the least restrlctive means of fnrthering their compeliing 
interest. Given the existence of government programs similar to Piaintiffs' proposed aiternative, 
the government has failed to mect this burden. 

Conchision 

The balance of the equities tip strongly in favor of injunctive reiief in this case, Bccause 
this case presents "questions going to the merits , . . so serious, stibstantiai, difficult, and 
doubtfui as to make the issue ripe foť litigation and deservirtg of more delibei ate investigation," I 
find it appropriate to enjoin the implenientation of the preventivě care coverage mandáte as 
applied to Piaintiffs. Accordingly, 

Defendants, their agents, officers, and cmpioyces, and their requirements that Piaintiffs 
provide FDA-approved contraceptive methods, sterilizatton procedures, and patíent edtication 
and counseling for women with reproductive capacity, are ENJOFNED from any application oř 
enforcement thereof against Piaintiffs, mehiding the suhstantive reqiiirement imposed in 42 

'* To be clear, I do not believe Defendants have stiffictently demonstrated a compeHing 
interest in enforcing the preventivě care coveragemandate against Piaintiffs. For purposes of my 
analysis under "least restrictive means" prong of RFRA, however, I assume the existence of such 
an interest. 

17 



Case 5:12-cv-01000-HE Document 6-1 Filed 09/12/12 Page 18 of 18 
Case l:12-cv-01123-JLK Document 30 Filed 07/27/12 USDC Colorado Page 18 of 18 



U.S.C, § 300gg-13(a)(4), the application of the penalties fotmd in 26 U.S.C. §§ 4980D & 4980H 
and 29 U.S.C. § [132, and any determination that the requirements are applicable to Plalntiffs, 

Purstiant to Fed. R. Civ. P. Rule 65{c), Plaintiffs shnil post a $100.00 boncl as security fór 
any costs and damages that may be sustained by Defendants in the event they have been 
wrongfully enjoined or restrained. 

Such injunction shali expire tliree months from entry of an order on the merits of 
Plaintiffs' challenge. In order to expediťe the resolution of this case, the parties shall file a Joint 
Case Management Pian on or before August 27, 2012, 

And, finally, I takc thls opportunity to emphasize the adhoc nature of this injunction. 
The governmenťs argutnents are iargely premised upon a fear that granting an exemption to 
Plaintiffs will necessarily require granting similar injunction to all other for-profít, secular 
corporations voicing religious objections to the preventivě care coverage mandáte. This 
injunction is, however, premised upon the alieged substantiai burden on Plaintiffs' free exercise 
of religion - not to any alieged burden on any other party's free exercise of religion, It does not 
enjoln enforcement of the preventivě care coverage mandáte against any other party, 

Dated: Juiy 27, 2012 BY THE COURT: 

/s/ Jol) n L. Kane , 

Senior U.S. District Court Judge 



18 



Case 5:12-cv-01000-HE Document 5 Filed 09/12/12 Page 1 of 4 



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF OKLAHOMA 



HOBBY LOBBY STORES, INC., 
MARDEL, INC., DAVID GREEN, 
BARBARA GREEN, STEVE GREEN, 
MART GREEN, AND DARSEE LETT, 
Plaintiffs, 



Case No. CIV-12-1000-HE 



KATHLEEN SEBELIUS, Secretary of the 
United States Department of Health and 
Human Services, UNITED STATES 
DEPARTMENT OF HEALTH AND 
HUMAN SERVICES, HILDA SOLIS, 
Secretary of the United States Department 
of Labor, UNITED STATES 
DEPARTMENT OF LABOR, TIMOTHY 
GEITHNER, Secretary of the United States 
Department of the Treasury, and UNITED 
STATES DEPARTMENT OF THE 
TREASURY, 

Defendants. 



NOTICE OF RELATED OR COMPANION CASES 



Plaintiffs submit the following list of 27 other cases also challenging the validity 
of the federal regulation at issue in this matter, on similar grounds. These cases, however, 
involve the application of the United States Constitution and federal statutes to different 
sets of facts. Plaintiffs, therefore, do not believe that they are "related" or "companion" 
cases as defined under Local Civil Rule 3.7(a). 

District of Columbia Circuit 

1. Belmont Abbey Coll. v. Sebelius, No. i:il-cv01989 (D.D.C.), Judge 
James E. Boasberg; 

2. Roman Catholic Archbishop o f Washington n . Sebelius, No. I:i2-cv-815 
(D.D.C.), Judge Amy Berman Jackson; 

3. Wheaton College v. Sebelius, No. I:i2-cv01169 (D.D.C), Judge Ellen 
Segal Huvelle; Court of Appeals Docket 12-5273 (D.C. Cir); 



Case 5:12-cv-01000-HE Document 5 Filed 09/12/12 Page 2 of 4 



Second Circuit 

4. PriestsforLifev. Sebelius, No. I:i2-cv00753 (E.D.N.Y.), Judge Ramon 
E. Reyes, Jr.; 

5. Roman Catholic Archdiocese ofNYv. Sebelius, No. i:i2-cv-2542 
(E.D.N.Y.), Judge Brian M. Cogan; 

Third Circuit 

6. Geneva Coll. v. Sebelius, No. 2:i2-cv00207 (W.D. Pa.), Judge Joy 
Flowers Conti; 

7. Rev. Donald W. Trautmanv. Sebelius, No. i:i2-cv-123 (W.D. Pa.), 
Judge Sean J. McLaughlin; 

8. Most Rev. David A. Zubikv. Sebelius, No. 2:i2-cv676 (W.D. Pa.), 
Judge Terrence F. McVerry! 

Fifth Circuit 

9. Louisiana Coll. v. Sebelius, No. I:i2-cv00463 (W.D. La.), Judge James 
D. Kirk; 

10. Roman Catholic Diocese of Dallasy. Sebelius, No. 3:i2-cv-1589 (N.D. 
Tex.), Judge Jane J. Boyle; 

11. Roman Catholic Diocese of Fort Worthv. Sebelius, No. 4:i2-cv-314 
(N.D. Tex.), Judge Terry R. Means; 

12. Roman Catholic Diocese of Biloxi v. Sebelius, No. I:i2-cvl58 (S.D. 
Miss.), Judge Robert H. Walker; 

Sixth Circuit 

13. Legatus v. Sebelius, 2:i2-cv-12061 (E.D. Mich.), Judge Michael J. 
Hluchaniuk; 

14. Franciscan Univ. of Steubenvillev. Sebelius, No. 2:i2-cv-440 (S.D. 
Ohio), Judge Mark R. Abel; 

Seventh Circuit 

15. Univ. ofNotre Damev. Sebelius, No. 3:i2-cv-00253 (N.D. Ind.), Judge 
Christopher A. Nuechterlein! 

16. Diocese ofFort WayneSouth Bend, Inc. v. Sebelius, No. I:i2-cv-159 
(N.D. Ind.), Judge Roger B. Cosbey! 

17. Catholic Diocese ofPeoria v. Sebelius, No. i:i2-cv-1276 (CD. 111.), 
Judge Byron G. Cudmore! 

18. Conlon v. Sebelius, No. i:i2-cv-3932 (N.D. 111.), Judge John W. Darrah; 

19. Triune Health Group v. Sebelius, No. I:i2-cv6756 (N.D. 111.), Judge 
Amy J. St. Eve; 

20. Grace Schoolsv. Sebelius, No. 3:i2-cv-00459 (N.D. Ind.), Judge Jon E. 
DeGuilio! 



2 



Case 5:12-cv-01000-HE Document 5 Filed 09/12/12 Page3of4 



Eighth Circuit 

21. State ofNebraska v. HHS, No. 4:i2-cv03035 (D. Neb.), Judge Cheryl 
R. Zwart; 

22. 0'Brienv. HHS, No. 4:i2-cv00476 (E.D. Mo.), Judge Carol E. Jacksoní 

23. Archdiocese ofSt. Louis v. Sebelius, No. 4:i2-cv924 (E.D. Mo.), Judge 
John A. Ross! 

Tenth Circuit 

24. Colorado Christian Univ. v. Sebelius, No. ll-cv-03350 (D. Colo.), Judge 
Boyd N. Boland; 

25. Newland v. Sebelius, No. I:i2-cv-01123 (D. Colo.), Judge John L. Kane; 
Eleventh Circuit 

26. Eternal Word Television Network, Inc. v. Sebelius, No. 2:i2-cv-00501 
(N.D. Ala.), Judge Sharon Lovelace Blackburn! 

21. Ave Maria University v. Sebelius, No. 2:i2-cv-00088 (M.D. El.), Judge 
Sheri Polster Chappell. 



Respectfully submitted this 12th day of September, 2012. 

/s/ Charles E. Geister III 

Charles E. Geister III, OBA No. 3311 
Derek B. Ensminger, OBA No. 22559 
Hartzog, Conger, Cason & Neville 
1600 Bank of Oklahoma Plaza 
201 Robert S. Kerr Avenue 
Oklahoma City, OK 73102 
Telephone: (405) 235-7000 
Facsimile: (405) 996-3403 
cgeister@hartzoglaw.com 
densminger@hartzoglaw.com 

ATTORNEYS FOR PLAINTIFFS 



3 



Case 5:12-cv-01000-HE Document 5 Filed 09/12/12 Page4of4 



- And- 

S. Kýle Duncan, LA Bar No. 25038 

(Motionfor Pro Hac Vice pending) 

Eric S. Baxter, D.C. Bar No. 479221 

(Motionfor Pro Hac Vice pending) 

Lori Halstead Windham, D.C. Bar No. 501838 

(Motionfor Pro Hac Vice pending) 

The Becket Fund for Religious Liberty 

3000 K Street, N.W., Suitě 220 

Washington, D.C. 20007 

Telephone: (202) 955-0095 

Facsimile: (202) 955-0090 

kduncan@becketfund.org 

ATTORNEYS FOR PLAINTIFFS 

CERTIFICATE OF SERVICE 

I hereby certify that tne foregoing document was filed through the Courťs ECF 
filing systém on September 12, 2012, and that a copy was served via first-class mail, 
postage prepaid, on the following: 

Eric Holder 

United States Attorney General 
950 Pennsylvania Ave. NW 
Washington, DC 20530 

/s/ Charles E. Geister III 

Charles E. Geister III 



4 



Case 5:12-cv-01000-HE Document 2 Filed 09/12/12 Page 1 of 6 

AO440(Rev. 12/09) Summons in a Civil Action 

UNITED STATES DISTRICT COURT 

for the 

Western District of Oklahoma 



HOBBY LOBBY STORES, INC., MARDEL, INC., DAVID 
GREEN, BARBARA GREEN, STEVE GREEN, MART GREEN, 
and DARSEE LETT, 



Plaintiff(s), 



V. 

KATHLEEN SEBEL1US, Secretary of the United States Department of Health 
and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND 
HUMAN SERVICES, HILDA SOLIS, Secretary of the United States 
Department of Labor, UNITED STATES DEPARTMENT OF LABOR, 
T1MOTHY GEITHNER, Secretary of the United States Department of the 
Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY, 



Defendant(s). 



Case No. CIV-12-1000-HE 



SUMMONS IN A CIVIL ACTION 

To: (Defendanťs name and address) 
Hilda Solis, Secretary 
U.S. Department of Labor 
200 Constitution Ave NW 
Washington, DC 20210 

A lawsuit has been filed against you. 

Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if 
you are the United States or a United States agency, or an officer or employee of the United States described in Fed. 
R. Civ. P. 12(a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under 
Rule 12 of the Federal Rules of Civil Proceduře. The answer or motion must be served on the plaintiff or plaintiff s 
attorney, whose name and address are: 
S. Kýle Duncan 

The Becket Fund for Religious Liberty 
3000 K Street NW, Suitě 220 
Washington, D.C. 20007 

If you fail to respond, judgment by default will be entered against you for the reliéf demanded in the 
complaint. You also must filé your answer or motion with the court. 




Signed and sealed by the Clerk of the Court or Deputy Clerk. 



Case 5:12-cv-01000-HE Document 2 Filed 09/12/12 Page 2 of 6 

AO440(Rev. 12/09) Summons in a Civil Action 

UNITED STATES DISTRICT COURT 

for the 

Western District of Oklahoma 



HOBBY LOBBY STORES, INC., MARDEL, INC., DAVID 
GREEN, BARBARA GREEN, STEVE GREEN, MART GREEN, 
and DARSEE LETT, 



Plaintiff(s), 



V. 

KATHLEEN SEBEL1US, Secretary of the United States Department of Health 
and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND 
HUMAN SERVICES, HILDA SOLIS, Secretary of the United States 
Department of Labor, UNITED STATES DEPARTMENT OF LABOR, 
TIMOTHY GEITHNER, Secretary of the United States Department of the 
Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY, 



Defendant(s). 



Case No. CIV-12-1000-HE 



SUMMONS IN A CIVIL ACTION 

To: (Defendanťs name and address) 
Kathleen Sebelius, Secretary 
U.S. Department of Health & Human Services 
200 Independence Avenue SW 
Washington, DC 20201 

A lawsuit has been filed against you. 

Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if 
you are the United States or a United States agency, or an officer or employee of the United States described in Fed. 
R. Civ. P. 12(a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under 
Rule 12 of the Federal Rules of Civil Proceduře. The answer or motion must be served on the plaintiff or plaintiff s 
attorney, whose name and address are: 
S. Kýle Duncan 

The Becket Fund for Religious Liberty 
3000 K Street NW, Suitě 220 
Washington, D.C. 20007 

If you fail to respond, judgment by default will be entered against you for the reliéf demanded in the 
complaint. You also must filé your answer or motion with the court. 

SUMMONS ISSUED: 
9:03 am, Sep 12, 2012 

ROBERTD DENNIS, Clerk 
Deputy C/erfr 




Signed and sealed by the Clerk of the Court or Deputy Clerk. 



Case 5:12-cv-01000-HE Document 2 Filed 09/12/12 Page 3 of 6 

AO440(Rev. 12/09) Summons in a Civil Action 

UNITED STATES DISTRICT COURT 

for the 

Western District of Oklahoma 



HOBBY LOBBY STORES, INC., MARDEL, INC., DAVID 
GREEN, BARBARA GREEN, STEVE GREEN, MART GREEN, 
and DARSEE LETT, 



Plaintiff(s), 



V. 

KATHLEEN SEBEL1US, Secretary of the United States Department of Health 
and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND 
HUMAN SERVICES, HILDA SOLIS, Secretary of the United States 
Department of Labor, UNITED STATES DEPARTMENT OF LABOR, 
T1MOTHY GEITHNER, Secretary of the United States Department of the 
Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY, 



Defendant(s). 



Case No. CIV-12-1000-HE 



SUMMONS IN A CIVIL ACTION 

To: (Defendanťs name and address) 
Timothy Geithner, Secretary 
U.S. Department of the Treasury 
1500 Pennsylvania Avenue NW 
Washington, D.C. 20220 

A lawsuit has been filed against you. 

Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if 
you are the United States or a United States agency, or an officer or employee of the United States described in Fed. 
R. Civ. P. 12(a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under 
Rule 12 of the Federal Rules of Civil Proceduře. The answer or motion must be served on the plaintiff or plaintiff s 
attorney, whose name and address are: 
S. Kýle Duncan 

The Becket Fund for Religious Liberty 
3000 K Street NW, Suitě 220 
Washington, D.C. 20007 

If you fail to respond, judgment by default will be entered against you for the reliéf demanded in the 
complaint. You also must filé your answer or motion with the court. 

SUhíMONSISSUED: 

9:04 am, Sep 12, 2012 

ROBERTD. DENNIS, Clerk 
Deputy Clerk 




Signed and sealed by the Clerk of the Court or Deputy Clerk. 



Case 5:12-cv-01000-HE Document 2 Filed 09/12/12 Page 4 of 6 

AO440(Rev. 12/09) Summons in a Civil Action 

UNITED STATES DISTRICT COURT 

for the 

Western District of Oklahoma 



HOBBY LOBBY STORES, INC., MARDEL, INC., DAVID 
GREEN, BARBARA GREEN, STEVE GREEN, MART GREEN, 
and DARSEE LETT, 



Plaintiff(s), 



V. 

KATHLEEN SEBEL1US, Secretary of the United States Department of Health 
and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND 
HUMAN SERVICES, HILDA SOLIS, Secretary of the United States 
Department of Labor, UNITED STATES DEPARTMENT OF LABOR, 
T1MOTHY GEITHNER, Secretary of the United States Department of the 
Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY, 



Defendant(s). 



Case No. CIV-12-1000-HE 



SUMMONS IN A CIVIL ACTION 

To: (Defendanťs name and address) 
U.S. Department of Health & Human Services 
200 Independence Avenue SW 
Washington, DC 20201 



A lawsuit has been filed against you. 

Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if 
you are the United States or a United States agency, or an officer or employee of the United States described in Fed. 
R. Civ. P. 12(a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under 
Rule 12 of the Federal Rules of Civil Proceduře. The answer or motion must be served on the plaintiff or plaintiff s 
attorney, whose name and address are: 
S. Kýle Duncan 

The Becket Fund for Religious Liberty 
3000 K Street NW, Suitě 220 
Washington, D.C. 20007 

If you fail to respond, judgment by default will be entered against you for the reliéf demanded in the 
complaint. You also must filé your answer or motion with the court. 

SmMONSISSUED: 

9:05 am, Sep 12, 2012 

ROBERTD DENNIS, CieHt 

Deputy Clerk 




Signed and sealed by the Clerk of the Court or Deputy Clerk. 



Case 5:12-cv-01000-HE Document 2 Filed 09/12/12 Page 5 of 6 

AO440(Rev. 12/09) Summons in a Civil Action 

UNITED STATES DISTRICT COURT 

for the 

Western District of Oklahoma 



HOBBY LOBBY STORES, INC., MARDEL, INC., DAVID 
GREEN, BARBARA GREEN, STEVE GREEN, MART GREEN, 
and DARSEE LETT, 



Plaintiff(s), 



V. 

KATHLEEN SEBEL1US, Secretary of the United States Department of Health 
and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND 
HUMAN SERVICES, HILDA SOLIS, Secretary of the United States 
Department of Labor, UNITED STATES DEPARTMENT OF LABOR, 
T1MOTHY GEITHNER, Secretary of the United States Department of the 
Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY, 



Defendant(s). 



Case No. CIV-12-1000-HE 



SUMMONS IN A CIVIL ACTION 

To: (Defendanťs name and address) 
U.S. Department of Labor 
200 Constitution Ave NW 
Washington, DC 20210 

A lawsuit has been filed against you. 

Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if 
you are the United States or a United States agency, or an officer or employee of the United States described in Fed. 
R. Civ. P. 12(a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under 
Rule 12 of the Federal Rules of Civil Proceduře. The answer or motion must be served on the plaintiff or plaintiff s 
attorney, whose name and address are: 
S. Kýle Duncan 

The Becket Fund for Religious Liberty 
3000 K Street NW, Suitě 220 
Washington, D.C. 20007 

If you fail to respond, judgment by default will be entered against you for the reliéf demanded in the 
complaint. You also must filé your answer or motion with the court. 

SUÍ.ÍMONSISSUED: 

9:05 am, Sep 12, 2012 

ROBERT D. DENNIS, Clerk 




Deputy Clerk 



Signed and sealed by the Clerk of the Court or Deputy Clerk. 



Case 5:12-cv-01000-HE Document 2 Filed 09/12/12 Page 6 of 6 

AO440(Rev. 12/09) Summons in a Civil Action 

UNITED STATES DISTRICT COURT 

for the 

Western District of Oklahoma 



HOBBY LOBBY STORES, INC., MARDEL, INC., DAVID 
GREEN, BARBARA GREEN, STEVE GREEN, MART GREEN, 
and DARSEE LETT, 



Plaintiff(s), 



V. 

KATHLEEN SEBEL1US, Secretary of the United States Department of Health 
and Human Services, UNITED STATES DEPARTMENT OF HEALTH AND 
HUMAN SERVICES, HILDA SOLIS, Secretary of the United States 
Department of Labor, UNITED STATES DEPARTMENT OF LABOR, 
T1MOTHY GEITHNER, Secretary of the United States Department of the 
Treasury, and UNITED STATES DEPARTMENT OF THE TREASURY, 



Defendant(s). 



Case No. CIV-12-1000-HE 



SUMMONS IN A CIVIL ACTION 

To: (Defendanťs name and address) 
U.S. Department of the Treasury 
1500 Pennsylvania Avenue NW 
Washington, D.C. 20220 



A lawsuit has been filed against you. 

Within 21 days after service of this summons on you (not counting the day you received it) - or 60 days if 
you are the United States or a United States agency, or an officer or employee of the United States described in Fed. 
R. Civ. P. 12(a)(2) or (3) - you must serve on the plaintiff an answer to the attached complaint or a motion under 
Rule 12 of the Federal Rules of Civil Proceduře. The answer or motion must be served on the plaintiff or plaintiff s 
attorney, whose name and address are: 
S. Kýle Duncan 

The Becket Fund for Religious Liberty 
3000 K Street NW, Suitě 220 
Washington, D.C. 20007 

If you fail to respond, judgment by default will be entered against you for the reliéf demanded in the 
complaint. You also must filé your answer or motion with the court. 

SUMMONS ISSUED: 

9:06 am, Sep 12, 2012 

ROBERT D DENNĚ, Cierk 

Deputy Clerk 




Signed and sealed by the Clerk of the Court or Deputy Clerk.